Bangalore District Court
State By vs Doddahanuma on 9 November, 2017
IN THE COURT OF THE XXXIV ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, (SPECIAL COURT) CENTRAL
PRISON PREMISES, PARAPPANA AGRAHARA,
BENGALURU.
Dated this the 9th day of November, 2017
Present :-
Sri.Shivanagouda, B.Com., LL.B., (Spl.)
XXXIV Addl. City Civil & Sessions Judge,
(Special Court), Central Prison Premises,
Parappana Agrahara, Bengaluru
S.C. No. 744/2001
Complainant :- State by
Kamakshipalya Police Station,
(Special Public Prosecutor)
-V/s-
Accused :- 1. Doddahanuma
S/o. Venkatappa,
Aged about 30 years,
Dandupalya, Hosakote,
Bengaluru.
2. Venkatesh @ Chandra
S/o. Venkataswamy,
Aged about 36 years,
Dinnur Colony,
Kadugodi,
Bengaluru Rural.
3. Munikrishna @ Krishna
S/o. Venkataswamy,
Aged about 25 years,
Dinnur Colony,
2 S.C.744/2001.
Kadugodi,
Bengaluru Rural.
4. Nallatimma @ Thimma
S/o. Gurubovi,
R/o. Channenahalli,
Muttur Post,
Piriyapatna Taluk,
Mysore District
25 years, Dinnur Colony
Kadugodi, Bengaluru Rural
5. Lakshmamma @ Lakshmi
W/o. Doddahanuma,
30 years, Dandupalya Village,
Hosakote Taluk,
Bengaluru.
( Sri.Hashmath Pasha, Advocate)
1. Date of Commission of
Offence :- 07/11/2000
2. Date of report of offence :- 07/11/2000
3. Arrest of the accused :- 01/02/2001
4. Date of release of accused on
Bail :- -
5. Period undergone in custody :- 16 Yrs, 9 Mths, 8 Days
6. Date of commencing of
Recording of evidence :- 23/08/2004
7. Date of closing of evidence :- 22/06/2010
8. Name of the complainant :- Sri.V.R.Jayaramaiah
9. Offence complained of :- Section 302 and 396
r.w.s. 34 of I.P.C.
3 S.C.744/2001.
10. Opinion of the Judge :- Accused guilty of the
Offences, convicted
11. Order of Sentence :- As per final order
*******
JUDGMENT
1. As per the directions of the Division Bench of the Hon'ble High Court of Karnataka dated 27/7/2017 passed in Criminal Referred Case No.7/2010 C/w. Crl. Appeal No.1289/2010 C/w. Crl. Appeal No.810/2011, the Hon'ble High Court of Karnataka has remanded this case to this Court for fresh disposal by rehearing of the matter without framing the charges or recording fresh evidence. The Hon'ble High Court of Karnataka has observed in paragraph No.19 to follow the mandatory provisions of Section 354 of Cr.P.C. which is as follows :-
354. Language and contents of Judgment.
1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353, -
a) Shall be written in the language of the Court;
4 S.C.744/2001.
b) Shall contain the point or points for determination, the decision thereon and the reasons for the decision:
c) Shall specify the offence (if any) of which, and the section of the Indian Penal Code, 1860 (45 of 1860), or other law under which, the accused is convicted and the punishment to which he is sentenced;
d) If it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.
...................
3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
............
5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
2. The Hon'ble High Court of Karnataka has also observed in page No.9 paragraph No.9 with regard to the charges framed against the accused for the offence 5 S.C.744/2001.
punishable under Section 302 read with Section 34 of I.P.C and for the offence punishable under Section 396 read with Section 34 of I.P.C. In the judgment the Hon'ble High Court of Karnataka has stated that the trial court has only framed points for consideration without mentioning the charges framed against the accused and the trial court while framing the points has left out mentioning of the offences and charges framed against them and delivered the judgment. The said judgment passed by my learned predecessor Court has been set-aside by the Hon'ble High Court of Karnataka on 27/7/2017.
3. My learned predecessor has passed the judgment under Section 235(2) of Cr.P.C. in respect of accused No.1 to 5 before remand of the case to this Court as follows :-
a) "First accused - Doddahanuma S/o. Venkatappa, U.T.P. No.10176, second accused - Venkatesh @ Chandra, U.T.P. No.10175, third accused Munikrishna @ Venkataswamy, U.T.P. No.10178, fourth accused Nallathimma S/o. Gorabovi U.T.P. No.10177 and fifth accused Lakshmamma U.T.P. No.10179 they were convicted for the offence under Section 396 for the
6 S.C.744/2001.
death sentence till their death by hanging and the said judgment was sent to the confirmation to the Hon'ble High court of Karnataka under Section 366 (1) of Cr.P.C. and thereafter the judgment will come into force was specified in the said judgment and an amount of Rs.5,000/- was imposed as fine for each accused.
b) The learned predecessor has also stated due to imposing of death sentence, accused No.1 to 5 were not entitled for the set-off period under Section 428 of Cr.P.C.
c) As per Section 374 of Cr.P.C., accused if they are aggrieved by the said Judgment, as per the limitation provided under Limitation Act 1963, read with article 115-A, accused are entitled to prefer an appeal before the Hon'ble High Court of Karnataka same was informed to the accused.
d) It is also stated in the judgment that the Superintendent of Central Jail, Parappana Agrahara is informed through the Court by issue of conviction warrant and immediately judgment copy and all the relevant documents are to be furnished to the accused under Section 366 (1) of Cr.P.C. for confirmation of death sentence imposed on the accused through the Hon'ble High Court of Karnataka was directed and asked to send the copy of the judgment to the Hon'ble 7 S.C.744/2001.
High court of karanataka under Section 366 (1) of Cr.P.C.
e) It is ordered to the Court of Parappana Agrahara as per the Criminal Rules of Practice Rule 7 (3) of the said rules directed to furnish the copies of the judgment of conviction free of cost to the accused.
f) It is also further directed to the office at Central Prison, Parappana Agrahara, to furnish the copies of the judgment freely and to get endorsement from the accused.
g) It is also further stated in the judgment as per Section 357 of Cr.P.C., the amount of fine/penalty of Rs.25,000/- which was order to be collected and the said amount is to be given as compensation to P.W.1. and M.O.1 to M.O.5 are ordered to be returned to P.W.1 and other worthless articles M.O.6 to M.O.17 are ordered to be destroyed after the appeal period is completed".
4. Aggrieved by the said judgment, the accused No.1 to 5 have filed the above mentioned Crl. Referred Case No.7/2010, C/w. Crl. Appeal No.1289/2010 C/w. Crl. Appeal No.810/2011 before the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka has set-aside the 8 S.C.744/2001.
judgment passed by my learned predecessor and remanded back to the trial court for fresh disposal after hearing the parties without framing the charges and also without recording the evidence.
5. On perusal of the observations of the Hon'ble High Court of Karnataka, it is clear that my learned predecessor has even though framed the charges, he has not included the I.P.C. sections while passing the judgment under Section 302 read with Section 34 of I.P.C. and also under Section 396 read with Section 34 of I.P.C. Hence the Hon'ble High Court of Karnataka found that apparently there is a glaring mistake in respect of Section 353 and 354 of Cr.P.C. and there is conviction only in respect of Section 396 of I.P.C. without there being any finding under Section 302 r.w.s. 34 of I.P.C. even though charges are framed. Hence set-aside judgment.
6. This Court has made all efforts to secure the accused physically. Due to the escort problem, the concerned I.O. of the Central Prison, Belgaum (Hindalga), I.O. Kamakshipalya/Vijayanagar P.S. have not produced the 9 S.C.744/2001.
accused No.1 to 5 before this Court under proper escort. The Central Prison Jailer was directed to produce the accused No.1 to 5 before this Court by video conferencing as last resort. Accordingly, produced the accused No.1 to 5 through video conferencing. Later, on 12/10/2017 accused No.1 to 5 were produced physically before the Court for trial.
7. The learned Special Public Prosecutor has opened his arguments and on the said date of hearing, the learned counsel for the accused Sri. Hasmath Pasha represented by Sri.Santosh.B. has represented accused No.1 to 5 and his signature is also taken in the order sheet with regard to securing the presence of the accused and representation of counsel to accused is there and defended them properly.
8. On behalf of the government, Kamakshipalya Police Station Inspector has filed the charge-sheet against the accused No.1 to 5 under Sections 396 and 302 r.w.s. 34 of I.P.C. before the V Addl. A.C.M.M. Court Bengaluru and the said case was numbered as C.C.No.6390/2001 and the said court has passed an order of 10 S.C.744/2001.
Committal and the same was registered in the City Civil Court Bengaluru and the case was made over to C.C.H.2 as per R.C.S. No.85/2002 dated 30/8/2002. As per the order of the Hon'ble High Court of Karnataka, this case was sent first to the Fast Track, Bengaluru and later on 12/9/2003 as per the Order in RSB No.71/2003, dated 29/4/2003, the Hon'ble High Court of Karnataka has established this Court and sent the file to this court to try the offences of the accused relating to Dandupalya as per the Government order LAW 165 LCE 2001 dated 15/2/2002 and a Special Court was established and the case was transferred to the Special Court and this Court has taken the file on board and perused the records etc., and secured the accused on 12/9/2003 by way of body warrant and the body warrant on 14/9/2003, accused were produced and the mean time, accused have appointed Legal Counsel by name Sri.P.K.Mohandas and later on Sri.B.Rajagopal and thereafter the case was tried by the Court and before me, Sri.Santhosh, Advocate, Sri.Hasmath Pasha, Advocate have represented before me to the accused.
9. The brief facts of the case of the prosecution is as under :-
11 S.C.744/2001.
Jayaramaiah who is the husband of the deceased Gita was staying in the House No.30, 7th Cross, Agrahara Dasarahalli, Bengaluru. P.W.1 - Jayaramaiah he has specifically deposed in his evidence that he has got two children by name Girish, aged about 10 years and Anitha aged about 8 years. He has also further deposed in his evidence that he was working as Meter reader in K.E.B. and he used to leave the house for work at 9.30 a.m. and returning to the house in the evening at 6 p.m. only. But on the fateful day on 7/11/2000, the said P.W.1 has left his house by 7.30 a.m. and children also had gone to the respective schools. He has also further deposed in his evidence that some body on that day has called him at about 5.30 p.m. through phone informing him that there was some galata in his house and he was asked to come immediately and he reached the house at 6 p.m. and saw the dead body of the deceased Geetha in the hall of the house in the pool of blood. He has also further deposed that he saw cut injuries made by knife over her neck, abdomen and back.
10. The prosecution in order to prove its case has examined witnesses P.W.1 to P.W.15 and got marked documents Ex.P.1 to 12 S.C.744/2001.
Ex.P.24 and M.O.1 to M.O.17. On behalf of accused, Ex.D.1 is got marked.
11. Heard the arguments of both the sides.
12. The points that arises for my consideration are :-
1. Whether the prosecution proves that accused No.1 to 5 on or about 7/11/2000 in the afternoon, with common intention to commit murder and dacoity armed with knives, gained illegal entry to house No.30 situated in the first floor of the building on 7th Cross, 6th Main of Agrahara Dasarahalli, Magadi Main road, belonging to C.W.1 -
B.R.Jayaramaiah and committed murder of Smt. Geeta wife of C.W.1 -
B.R.Jayaramaiah aged about 30 years who was alone in the said house by stabbing on her neck, stomach and other parts of her body and thereby committed an offence punishable under Section 302 read with Section 34 of I.P.C.?
2. Whether the prosecution further proves that on 7/11/2000, in the afternoon at 13 S.C.744/2001.
House No.30, situated in the first floor of the building on 7th Cross, 6th Main Agrahara Dasarahalli, Magadi Main road, Bengaluru, after committing the murder of Smt. Geeta, who was alone in the house, robbed her golden Mangalya chain, one pair of golden mati, 2 pairs of golden hangings, one saree and one shirt and thereby committed the offence under Section 396 read with Section 34 of I.P.C.?
3. What order?
13. My findings on the above points are as follows :-
POINT NO.1 :- In the affirmative,
POINT NO.2 :- In the affirmative,
POINT NO.3 :- As per final order
for the following reasons
REASONS
14. POINT NO.1 AND 2 :- These two points are interlinked and needs common discussion, hence they are taken together for consideration. The brief facts of the case of the prosecution is as under :-
14 S.C.744/2001.
That on 7/4/2000 in the afternoon the accused No.1 to 5 at Bengaluru Magadi Main Road, Agrahara Dasarahalli, 6th Main Road, 7th Cross, entered the house No.30 to the first floor wherein the house of V.R.Jayaramaiah, KEB Lineman was resided with his wife and children and the accused No.5 has entered the house first on the pretext of asking water by knocking the door and later on accused No.1 to 4 entered the house. Accused No.2 was watching the front door and accused No.4 has caught hold Smt.Gita, accused No.3 caught hold the mouth of Smt.Gita by not making galata and accused No.2 came inside the house and stabbed with the knife on the back. Accused No.3 also came inside house and he has also stabbed on her back, neck and also chest. Accused No.1 was also assaulted with the wife on Gita's ears and back portion and stomach etc., and caused the blood (stained) injuries on her and thereby she was murdered and robbed golden Mangalya chain, mati, ear stud, etc., and accused No.4 has taken these golden articles and accused No.3 taken shirt and in all, they have taken golden articles worth Rs.22,400/- and committed robbery and as well as murder of Smt.Gita W/o. Jayaramaiah, KEB Lineman, was on duty. Thereby the accused have committed an offence punishable under Section 396 and 302 r.w.s. 34 of I.P.C.
15 S.C.744/2001.
15. In order to prove the case of the prosecution, prosecution examined P.W.1 to P.W.17 and got marked Ex.P.1 to Ex.P.24. On the side of the prosecution M.O.1 to M.O.17 are got marked. There is no defence evidence by accused. Statement of the accused under Section 313 of Cr.P.C. was recorded. They have denied as false. The evidence of the prosecution is discussed as follows :-
16. P.W.1 - Jayaramaiah who is the husband of the deceased Gita was staying in the House No.30, 7th Cross, Agrahara Dasarahalli, Bengaluru. P.W.1 - Jayaramaiah, KEB Lineman, has specifically deposed in his evidence that he has got two children by name Girish, aged about 10 years and Anitha aged about 8 years. He has also further deposed in his evidence that he was working as Meter reader in K.E.B. and he used to leave the house for work at 9.30 a.m. and returning to the house in the evening only. But on the fateful day on 7/11/2000, the said P.W.1 has left his house by 10 a.m. and children also had gone to the respective schools. He has also further deposed in his evidence that some body on that day has called him at about 5.30 p.m. through phone informing him that there was some galata/disturbance in his house and he 16 S.C.744/2001.
was asked to come immediately and he reached the house at 6 p.m. and saw the dead body of the deceased Geetha in the hall of the house in the pool of blood. He has also further deposed that he saw cut injuries made by knife over her neck, abdomen and back. He has further deposed that he came to know that murder has taken place and he gave complaint on 7/11/2000 which is marked as Ex.P.1 and signature is as per Ex.P.1(a).
17. He has also further deposed that one Ravi was having grudge and he was suspicious about him who is against his family in chit business and police have conducted the spot mahazar and also the seizure mahazar of the articles. He has further deposed that he found one rope mangalya chain, a pair of red stone ear hangings, a pair of white stones ear hangings, a pair of golden mati, a pair of golden ear rings were missing from deceased Gita and also noticed that his blue straps half shirt, one trouser, one blue coloured designed saree of his wife were missing. Further he has deposed that Sri.Chalapathy, Police Inspector of Vijayanagar Police Station came to his house and noted missing articles belonging to the complainant. He has further deposed that Sri. Nagaraj, PSI, Kamakshipalya Police Station was directed to produce the properties by 24/8/2004. On 24/8/2004, Sri.Anantha Swamy, 17 S.C.744/2001.
A.S.I. Kamakshipalya Police Station produced all the articles which were deposited in the Treasury box with the escort police and they were got marked as M.O.1 to M.O.6. During the course of evidence of P.W.1 he has identified the same as belonging to his wife and also to him.
18. In the cross-examination the learned counsel for the accused has suggested that "you have not at all stated about the missing of the articles such as trousers, saree and other articles in your statement". Further he has also suggested that "you have put forth your claim for missing articles before Kamakshipalya Police Station and you have not stated in the complaint i.e., Ex.P.1 about these articles". Further, it is also suggested in the cross- examination that the cases are booked against one Ravi and he was relative of deceased Gita who is having chit business and several cases were booked against him in Kamakshipalya, Rajajinagar and Malleswaram Police Stations. According to the contentions of the learned counsel for the accused, the witness denied the same and saw only the dead body and he has also deposed in the cross- examination that it is false to say that he has not given any statement with regard to the missing articles to the Police Station 18 S.C.744/2001.
at Vijayanagar Police Station and also with regard to the missing of clothes belonging to him, his wife and two children. It is also suggested in the cross-examination that he is deposing only at the instance of P.S.I. of Vijayanagar Police Station. Witness has denied the same as false.
19. P.W.2 - Sri.D.Shivaraj, Lineman, K.E.B. has deposed before the Court that he is stated to be the co-worker with the complainant Sri.Jayaramaiah. He heard the scuffle in the house of the said Jayaramaiah and he has enquired about the incident and came to the spot immediately on 7/11/2000 at about 6.30 p.m. and he has assisted the Vijayanagar Police Station officials in conducting of the mahazar in respect of articles found at the scene of evidence and police have conducted the mahazar as per Ex.P.2 on 7/11/2000 itself. Ex.p.2 (a) is his signature. He has also further deposed that police have conducted inquest maharzar of the deceased Gita on the same day itself i.e., on 7/11/2000, which is marked as Ex.P.3 and signature of the said witness is marked as Ex.P.3(a) and another witness C.W.3 - Ranganathappa and C.W.4 - Kodandarama have signed Ex.P.2 and Ex.p.3.
19 S.C.744/2001.
20. P.W.2 has further deposed in his evidence that when he was called to the police station on 8/11/2000, police conducted the seizure of the articles which is marked as Ex.P.4 and his signature is at Ex.P.4(a). He has further deposed that he could identify the blood scrapings, blood stained T-shirt, shirt buttons, black coloured nighty and petty coat. In the further chief-examination this witness has deposed that blood scrapings is marked as Ex.P.7, two blood stained combs marked as M.O.8, one blood stained white button marked as M.O.9, one blood stained rose colour hand kerchief marked as M.O.10, one blood stained white with green colour border saree marked as M.O.11, one blood stained green colour blouse, marked as M.O.12, three green colour broken buttons marked as M.O.13, one blood stained grey colour check shirt marked as M.O.14, one blood stained brown colour T-shirt marked as M.O.15. He has deposed that M.O.7 to M.O.15 were seized by the police at the spot. He has further deposed that one black with red flower designed nighty marked as Ex.P.16 and one blue colour petty coat marked as Ex.P.17 were seized by the police in his presence. This witness has not been cross-examined by the learned counsel for the accused and hence the cross-examination of this witness is taken as nil.
20 S.C.744/2001.
21. P.W.3 - Puttaraju has deposed before the court. In his evidence he has deposed that Vijayanagar Police have called him as a pancha witness in respect of robbery and murder case of said Gita within Vijayanagar Police Station limits and he has acted as a pancha for the mahazar and he saw the accused Doddahanuma and other accused in the police station. He has deposed that they went to House No.30, 7th Cross, 6th main, Agraharadasarahalli, Bengaluru. At that time, accused by name Doddahanuma pointed out the first floor and hall of the said house and accused Doddahanuma and his companions have murdered the women by slitting her throat and robbed the jewelers and shirts and in that respect the Kamakshipalya Police and Vijayanagara police have conducted the mahazar on 3/2/2001 and it is marked as Ex.P.5 and his signature is marked at Ex.P.5(a). The police have also recorded his statement.
22. In the cross-examination, the counsel for the accused has suggested that he did not took the accused Doddahanuma to the house where the murder took place and police have not conducted any mahazar and he was deposing falsely. Further it is also suggested that how the said witness taken to spot and 21 S.C.744/2001.
Doddahanuma were taken to the spot in the police jeep and he has signed the panchanama mahazar in the police station. He has stated that he do not know the name of the Inspector, police or other personnel of Kamakshipalya Police Station and he has deposed that he saw five persons in the lock up in the Vijayanagar Police Station and the said Police Inspector told that these persons have murdered the said Gita and one among them was Doddahanuma and he has shown the spot and other accused. This witness has stated that he has gone with the said accused No.1 Doddahanuma to the spot of murder is the same person pointed out to him by the police.
23. P.W.4 - Sri.D.Janardhan Shetty, who is doing jewellery business at Chickpet, Bengaluru, under the name and style "Sathyanarayana Jewellery Mart" is the seizure mahazar witness. In his evidence he has deposed that on 7/2/2001 one Sri.Chalapathy Police Sub-Inspector of Vijayanagar Police Station has brought the accused No.2 Venkatesh and also accused No.3 - Munikrishna to the shop on the same day and police have conducted the seizure mahazar in Cr.No.764/2009 and seized in presence of the accused No.2 and 3 and they told that in the said shop belonging to him, they sold the articles in the Raja Market, 22 S.C.744/2001.
Bengaluru. According to their statement given by accused No.2 - Venkatesh and accused No.3 - Munikrishna, the owner of the shop has produced one pair of golden ole, one pair of golden bangles, three golden bangles, one mangalya chain and one golden chain and conducted seizure mahazar as per Ex.P.6 and his signature is at Ex.P.6(a).
24. P.W.4 has further deposed that on the same day at about 2 p.m. Sri.Chalapathy, Vijayanagar Police Inspector brought accused No.3 - Munikrishna to his shop. He has deposed that accused No.3 - Munikrishna told before the police in his presence that he has sold seven articles which included one pendante, one pair of gold bangles, one golden chain, one gold rope chain of two lines and other articles and seizure mahazar is conducted in respect of accused No.3 as per Ex.P.7. Ex.P.7(a) is the signature of the said witness.
25. This witness has also further deposed that on 8/2/2001 another panchanama was conducted in respect of seizure of golden articles and accused No.1 Doddahanuma and accused No.4 - Nallathimma were brought to the shop of P.W.4 at the instance of the accused and articles were produced by the owner of the said 23 S.C.744/2001.
shop and they are one pair of golden ole and one gold ingot, one golden gejje, one pair of silver deepasthamba, one or two silver glasses and other items and police have seized those articles under a mahazar which is marked as Ex.P.8 and Ex.P.8(a) is his signature and the witness has identified the articles and mahazar was prepared on the same day. It is also further deposed by the said P.W.4 in his evidence that accused had brought those articles and they were in need of financial crises and sold to him and he purchased the same.
26. In the chief examination, though the articles were marked as M.O.1 to M.O.5 and the recovery panchanama is marked as Ex.P.9. Another panchanama in connection with ear stud given to him at the instance of Doddahanuma. His signature is at Ex.P.9(c). In the cross-examination the learned counsel for the plaintiff has suggested several questions. It is suggested that police have not at all conducted the seizure panchanama in presence of the owner of Satyanarayana Jewellers and accused No.1 to 3 were not brought to the shop and at the instance of the accused the owner has not at all produced M.O.1 to M.O.5 and these accused persons have not sold the golden articles and the witness has stated to have been stating falsely. But, witness has denied the same and he has also 24 S.C.744/2001.
stated that his transaction per day is Rs.10,000/- to Rs.12,000/- at the maximum upto Rs.15,000/- took place.
27. He has also further stated in the cross-examination that there is no entry in the ledger book to the purchase of the articles and he has not kept the accounts in respect of the gold transactions in order to avoid income tax. He could not give the details of the sold articles. It is also suggested that due to lapse of time he could not identify the ornaments purchased. Further, it is also suggested in the cross-examination that ornaments like M.O.1 to M.O.5 were available in the shops and those articles were not belongs to the deceased Gita. It is suggested to the witness that only at the instance of police he is deposing falsely and the witness has denied the same. The witness has stated that the original nature of the articles was not retained as it was polished to resale the same to other customers. Witness has also deposed that on the same day i.e., on 7/2/2001, Police Sub-Inspectors of Vijayanagar and Kamakshipalya Police station came to the jewellery shop in respect of another panchanama. On 8/2/2001 also seizure panchanama were conducted on different dates at different times and it is suggested that these seizure mahazars were not drawn at the shop of P.W.4. Witness has denied the same. In the further 25 S.C.744/2001.
cross-examination of P.W.4 it is also suggested that this witness is not aware as to who all have signed the seizure panchanama. Witness has denied the same. It is also suggested in the cross- examination that the said Janardhan Shetty was running the said jewellery shop by way of illegal business and well acquainted with the police and he was not maintaining accounts in respect of transaction. Due to the said reasons, the said Janardhan Shetty has supported to the case of prosecution. Hence the said evidence is false. Witness has denied the same.
28. P.W.5 Rangaswamy worker in Satyanarayana Jewellery shop and he has deposed in his evidence with regard to conducting seizure mahazar of five gold items from the shop of Janardhan Shetty who is P.W.4 in this case. He has also deposed that accused Krishna and accused Venkatesh, Nallathimma have taken him along with the police to the jewellery shop and wherein at the instance of the accused the owner of the shop has produced the purchased golden articles as per seizure panchanama and they are marked as M.O.1 to M.O.5 and the panchanama marked as per Ex.P.7, Ex.P.8, Ex.P.9 and signatures were marked as Ex.P.6(b) Ex.P.7(b), Ex.P.8(b) and Ex.P.9(a). In the cross-examination learned 26 S.C.744/2001.
counsel for the accused has suggested several questions denying the police of Vijayanagar, Kamakshipalya Police station not taken you to the shop of Janardhan shetty, owner of the jewellery shop and not conducted the seizure mahazar as per Ex.P.6, Ex.P.7, Ex.P.8 and Ex.p.9, witness have denied but they have stated that police have taken them on 7/2/2001 and 8/2/2001 and it is also suggested in the cross-examination he cannot identify the articles and there is no specification and such articles were also available in the market and witness have denied the same as false. It is also suggested in the cross-examination that you are deposing falsely that one Doddahanuma had accompanied you on 7/2/2001 and 8/2/2001 to the jewellery shop and witness has denied the same. It is also suggested to the witness that they have signed at the instance of the police.
29. P.W.6 - R.Kodandaramaiah, KEB Line man. He has deposed before the court as a Inquest mahazar witness and he has stated that police have conducted the Inquest of the deceased Gita who was the wife of C.W.1 and he saw the dead body and also other articles, bangle pieces, comb, dollar and saree etc., Hence police have drawn panchanama as per Ex.P.3 His signature is at Ex.P.3(b). Further he has also deposed that police have drawn 27 S.C.744/2001.
another panchanama as per Ex.P.2. His signature is at Ex.P.2(b) police have seized M.O.7 blood, M.O.9 button stained with blood and M.O.11 saree. In the cross-examination the counsel for the accused denied that police have not conducted the panchanama. Witness has denied the same.
30. P.W.7 - Girish, the son of the deceased Gita and also P.W.1 and he has specifically deposed in his evidence that deceased Gita is his mother and they have got house at Dasarahalli and his father is Jayaramaiah, KEB lineman and his sister is Anitha and they were all residing together in the said house. He has deposed that on 7/2/2001 his father had gone to KEB work and he and his sister went to the school and these children came to the house at about 4 p.m. school return time and saw the open door and it was opened and his mother was already sustained injuries and by fearing the same ran away to the front house and called for help and one Smt.Nagamma came to the house of the P.W.7 and Nagamma informed the police and also informed the father of P.W.7, Jayaramaiah that he was on work at about 4.30 or 4.45 pm. Police came to the spot and conducted the enquiry and at that time, the mother of P.W.1 was already lost the breathe and his 28 S.C.744/2001.
father came to the house at about 5 or 6 p.m. By the counsel for the accused there is no cross-examination.
31. P.W.8 - Nagamma @ Nagaratnamma has deposed before the court in evidence that she was residing in front of the house of P.W.1 and deceased Gita and according to her evidence Jayaramaiah was working at KEB and his two children were going to school and she had gone to the temple on that day and she was slept over and at about 4 p.m. after school time of these children she woke up for the scuffle and noise and came out and saw the dead body of the Gita in front of her house and the children of Gita were taken to her house and informed to the police over phone. Later on, the police came. In the cross-examination, it has been suggested by the learned counsel for the accused she was not at all residing in the front house and you have not seen Gita and you are residing in your house by closing the door and Gita also closing the gate in front of house and she was residing in the first floor and it is suggested that she has not given any statement before the police in respect of the incident and more particularly as per Ex.D.1, witness denied the same.
29 S.C.744/2001.
32. P.W.9 - C.S.Shivakumaraiah, Police Constable of Kamakshipalya Police Station has deposed before the court in his evidence that he saw injuries on the dead body of Gita at her neck and that soon after conducting of mahazars he took the dead body of the deceased to mortuary and gave the dead body to the hospital. Later on handed over the dead body to the husband of the deceased Gita and the clothes of the deceased as per M.O.16 and M.O.17 one petticoat and nighty were brought the same along with the report as per Ex.P.10. Ex.P.10(a) is his signature. There is no cross- examination by the learned counsel for the accused.
33. P.W.10 - S.Babu, owner of general stores has deposed before the court that he saw the accused before the court accused No.3 to accused No.5 and police have shown in the police station one golden chain and one blood stained shirt which was seized from Munikrishna and police have conducted the panchanama as per Ex.P.11. Ex.P.11(a) is his signature. In the further chief- examination on the same day police have called at 3 p.m. and from the accused Doddahanuma one pair of ear stud and one pair leg chain, one polyster saree were given by the accused No.5 and the said accused were also wearing the ear stud and also pair of leg 30 S.C.744/2001.
chain one saree and she has produced the same before the police and police have conducted the mahazar by seizing M.O.1, M.O.3, M.O.6 and M.O.11 and witness has identified the same.
34. In the cross-examination the learned counsel for the accused has suggested that the police have not at all conducted the mahazar as per Ex.P.12 and not taken signature as per Ex.P.12(a) and not seized the clothes, ear studs, one saree from the accused. It is also suggested that you are well acquainted with the police for getting permission for celebration of Kannada Rajyotsava, Independence day, Hanuma Jayanthi at Vijayanagar and you are deposing falsely to help the accused. It is also suggested that the Police Inspector has not told the name of five accused on that day. Witness has denied the same. It is also further suggested that no articles were seized in your presence by the Vijayanagar Police Station Sub-Inspector as per M.O.1, 6 and 11 and you are doing petty business and hence in order to help the police you are deposing falsely. Witness denied the same.
35. P.W.11 - Sri.Chikkavenkataswamy, P.S.I. Vijayanagar Police Station during the year 2002-2004 and he has deposed before the Court in his evidence that he and Mr.Chalapathy and 31 S.C.744/2001.
one Mr.Raviprakash, Mr.Valipasha and Mr.S.K.Umesh went towards the Tiptur to trace the absconding accused and at that time they were in the vehicles and at Ichanoor village of Tiptur Taluka, these accused No.1 to 5 i.e., Doddahanuma they were near by the school on the outskirts of the village Ichanur in Tiptur Taluk, they have caught hold the accused No.1 to 5.
36. In the cross-examination it has been suggested by the learned counsel for the accused that the police of Vijayanagar and Kamakshipalya have not went in the jeep towards Tiptur in search of the accused and they have not caught hold of accused No.1 to 5 nearby the school and you have not taken permission from the Police Commissioner for apprehending the accused. Witness have denied the same. It is also suggested in the cross-examination that you have not went to Ichanoor village of Tiptur Taluk and you have not apprehended accused No.1 to 5 at about 10 meter distance, and it is also suggested in the cross-examination that you do not know the spot where you have caught hold the accused and you have not taken the assistance of villagers. Witness has denied the same. It is also suggested in the cross-examination as to the height, weight, colour of clothes, physique etc., of the accused No.1 32 S.C.744/2001.
to 5. Witness has stated that they had normal physique with long face without beard. It is also suggested in the cross-examination that all the accused were made to sit in the same vehicle or different vehicles and witness has stated that he has not remembered the same.
37. P.W.12 - K.H.Manjunath, Deputy Director, Medical Education Department, Bengaluru has deposed before the court in his evidence that on 8/11/2000 at about 11 a.m. the dead body of Smt.Gita, aged about 30 years brought for the post mortem examination at about 11.05 a.m. and he conducted the post mortem till 12.05 p.m. According to his evidence before the Court that on examination of the said deceased Smt.Gita there are in all 1 to 11 antimortem injuries and also blood was clotted and according to his evidence the injury No.6 and 8 was caused through the sharp edged weapon and both the right and left lungs and below lobe entered and blood came from the chest and the doctor found that there was blood of 450 m.l. in the right lungs and 400 m.l. at the left lung. Some blood came out and some blood clotted. Further he has also deposed that there were injuries to the spleen and 1250 m.l. blood was stored. According to his evidence, the death was 33 S.C.744/2001.
caused to said Smt. Gita due to the blood oozing, blood clotting and due to the restriction and circulation of the blood and the said doctor had issued the Post Mortem report as per Ex.P.13 and he found the following injuries.
1. Vertical abrasion present just below middle of left eye measuring 2.5 c.m. x 0.5 c.m.
2. Cresentic abrasion with convexity inwards present 2.5 c.m. below the left angle to mouth measuring 1.5 c.m. x 0.25 c.m.
3. Incised wound present over left upper part of neck, 1.5 c.m. below the middle to ramus of mandible, 1.5 c.m. to the left of mid line measuring 3 c.m. x 1 c.m. x muscle deep.
4. Oblique stab wound present over middle of lower part of neck just above the supra sternal notch, measuring 3 c.m. x 1.25 c.m. x 3 c.m. deep into muscle plain. Upper outer end is blunt, inner lower end is sharp margins are clean cut, with a nick over right carotid sheath wound in directed back wound and to the right.
5. Vertical stab wound present over right side lower part of neck 2.5 c.m. to the right or previous injury, measuring 3 c.m. x 1 c.m. x 6 c.m. deep upper end is 34 S.C.744/2001.
blunt and lower end is sharp. Margins are clean cut wound directed outwards and to the right with unelesmeath structuries clean cut.
6. Transverse stab wound present over back of right side chest, situated 17 c.m. above the level of highest point do iliac Crest and 5 c.m. to right to mid line measuring 3 c.m. x 1 c.m. x cality deep margins are clean cut. Right end is sharp and left end in blunt wound is directed upwards and forwards.
7. Transverse stab wound present over back of right side chest, situated 5 c.m. above the level of previous injury and 2 c.m. to the right of mid line measuring 3 c.m. x 1 c.m. x 5 c.m. deep into muscle plain, directed downwards and to the right margins are clean cut, left end is blunt and right end in sharp.
8. Oblique stab wound present over back of left side chest situated at the level to injury No.6 and 5.5. c.m. to the left to mid line measuring 3 c.m. x 1.25 c.m. x callity deep. Margins are clean cut upper outer end is blunt and inner lower end is sharp.
9. Transverse stab wound present over back of left side chest 4 as below previous injury measuring 3 c.m. x 0.75 c.m. x 3 c.m. deep into muscle plane, margins 35 S.C.744/2001.
clean cut. Inner end is sharp and outer end is blunt wound is directed downwards and towards midline.
10. Transverse stab wound present over back of right side of lower abdomen 0.5 c.m. to the right of mid line and 3 c.m. above the level of ilic crests measuring 3 c.m. x 1 c.m. x 5 c.m. deep into muscle plane. Margin clean cut. Inner end is sharp and outer end is blunt. Wound is directed towards downwards and towards right.
11. Transverse stab wound present over left side of chest in the mid axillary line situated 23 c.m. below the left arm pit and 10 c.m above the iliac crest measuring 3 c.m. x 1 c.m. x cavilgy deep margin clean cut. Front end in blout and back end is sharp.
38. He has also deposed that before conducting the post mortem he has handed over clothes of the deceased to the police as per M.O.16 and M.O.17.
39. In the cross-examination, the learned counsel for the accused has suggested that the deceased Gita has not sustained injuries as mentioned in Ex.P.13 post mortem report and she has not died due to such injuries, witness denied the same and the 36 S.C.744/2001.
court question was asked whether the witness has seen the weapon used by the accused and he has deposed that the police have not shown the weapon and not sought the opinion of the said doctor who has conducted the post mortem examination of deceased Smt.Gita.
40. P.W.13 - Lakshmanashetty, who is a broker in purchase and sale of gold articles. He has deposed before the court in his evidence that police have brought the accused Venkatesh and also Munikrishna and the accused Venkatesh has taken the said witness and the police P.S.I. of Chalapathy, Vijayanagar to the shop of one Janardhan Shetty who is running jewellery shop and Janardhan Shetty has shown five articles and handed over the same to the police. Police have conducted above seizure mahazar as per Ex.P.6. Ex.P.6(c) is his signature. He has identified M.O.1 golden mangalya chain and he has specifically stated it is identification as JG emblem.
41. On the same day in presence of this witness P.W.13 another seizure panchanama was conducted in presence of accused Munikrishna and the said owner Janardhana Shetty, 37 S.C.744/2001.
owner of the Jewellery shop where the items were sold by the accused and he has produced the purchased stolen articles said items in the shop and seven items which was sold by the accused in his shop and they are one golden chain, and he has also seen M.O.2 and M.O.3 two ear studs containing white and red stones in it and the said seizure mahazar is marked as ExP.7. The witness has signed Ex.P.7 at Ex.P.7(c).
42. The witness has also further deposed that in presence of accused Nallatimma he has produced 13 items of gold and silver articles in the jewellery shop of Janardhana Shetty as he has purchased from accused. M.O.4 is golden mati. The said mahazar is conducted as per Ex.P.8. Ex.P.8(c) is his signature. On the same day, in the afternoon accused Doddahanuma has taken the witness and police to the jewellery shop of Janardhan shetty and he has sold the said articles in the said shop. In presence of this witness and also Rangaswamy. The owner of the said shop admitted the same as he has purchased from the accused Doddhanuma, golden articles and produced red stoned ear stud, and one golden ignott which was related to criminal case. In that regard the police have also conducted the seizure mahazar as per Ex.P.9 and signature of 38 S.C.744/2001.
the witness is marked as Ex.p.9(b) and he has also identified the accused before the Court.
43. In the cross-examination the learned counsel for the accused has suggested several questions stating that the witness has not gone to the jewellery shop of Janardhana Shetty and police have not seized in his presence. M.O.s - 1, 2 and also M.O.4 and M.O.5 and also on the said date on 8/2/2001.
44. From all the accused, Venkatesh, Munikrishna, Nallatimma not seized in presence of them and he was deposing falsely. In order to help the police, you are deposing falsely. Witness has denied the same. It is also suggested in the cross-examination that there is no identification mark on M.O.5. It is also suggested that he was working in the shop of Janardhana Shetty and left the shop. In the cross-examination it is suggested that because of working in the said shop he was deposing falsely. Witness has denied the same. It is also further suggested in the cross- examination to the said witness P.W.13, in order to help the police even though mahazar was not conducted he was deposing falsely. The witness has denied the same.
39 S.C.744/2001.
45. P.W.14 - K.Sheshadri, P.S.I. of Kamakshipalya Police Station has deposed in his evidence that on 7/11/2000 he received one telephone call from Sri.Jayaramaiah house. He has left the office at about 10 a.m. to the KEB office and he has came to the office at evening and he saw the murder of his wife in his house by stabbing with the knife murdered and robbed golden articles and blood was oozing and he gave the complaint as per Ex.P.1. Ex.P.1(b) is his signature. He has registered a case in Crime No. 438/2000 and he has issued the FIR as per the Ex.P.14. He has conducted the spot Mahazar Ex.P.2, Inquest Mahazar as per Ex.P.3 and one Shivaraj, Ranganath and Kodandaramaiah were the Inquest Panchas and one Girish and Nagesh were Spot Panchas. PSI has further deposed that the dead body of the deceased was fallen on the ground in North - South direction and he saw the dead body and the other articles i.e., comb, one plastic dollar, one white and gulabi colour kerchief, one ticket of chit business, one blood stained saree one blouse and also the three buttons and also one full shirt and also one reebok T-shirt and he has conducted the seizure mahazar of these articles as per P.F. No.131/2000 and they are M.O.Nos. 16 to M.O.15. He has also further deposed in his 40 S.C.744/2001.
evidence that he sent the dead body for the post mortem examination through Shivakumaraiah, P.C.No.16/03 and he has also conducted panchanama of the clothes of the deceased as peer Ex.P.4. Ex.P.4(b) is his signature and Ex.P.10 is the report given by the P.C. He has also seized M.O.No.16 and M.O.17 and he has also sent those articles to Forensic Laboratory.
46. The witness has also further deposed in his evidence that on 27/4/2000, the PSI by name Sri.Chalapathy of Vijayanagar Police Station and he has recorded the confession statement and handed over the articles seized by him as per P.F.56/2001 and they are Mo.O.1 to M.O.5. P.W.14 has also deposed that on 15/11/2001 Sri.Jayaramaiah, the husband of the deceased Gita gave further statement with regard to the missing articles and on 8/1/2001, he received the P.M. report as per Ex.P.13 and he has secured the accused No.1 to 5 on 15/12/2001 and they were given to Judicial custody. He has also further deposed that accused have murdered for their illegal gain. After completion of the investigation the said I.O. submitted the charge sheet and he has secured four accused by that time and he has identified the accused persons in the court.
41 S.C.744/2001.
47. In the cross-examination the learned counsel for the accused has suggested that you have not enquired one Sri.Ravi who is suspected by the complainant is with chit business transaction. Witness has admitted the same and he came to know that Ravi has not murdered and he has got only a chit business and there was difference of opinion and enemity. It was also suggested in the cross-examination by the learned counsel for the accused that the golden articles were not missing in the house and it is also further suggested that Ravi has not been enquired with regard to the murder and his chit business. Witness has denied the same. It is also further suggested in the cross-examination that he has not recorded the further statement of the complainant on 15/11/2001 and even though these accused have not committed any offences you have filed false charge sheet against the said accused No.1 to 5. Witness has denied the same.
48. Court questions as to what action was taken for the seizure of the articles used for the commission of the offence.
49. P.W.15 - N.Chalapathy, P.S.I. of Vijayanagar Police Station has deposed before the court in his evidence that on 42 S.C.744/2001.
28/10/1999 a case was registered in the Vijayanagar Police Station in Crime No.674/1999 under Section 302 of I.P.C. on the basis of complaint by Dr.Prakashvishnu he took further investigation of this case on 10/7/2000. He took up further investigation of this case in Crime No.353/1999 of Banaswadi police station He has also further stated that on 17/9/2000 he received information from CBCID Chittoor stating that Doddahanuma, Chinnappa and Venkatarama and other accused escaped from Chittoor prison. He has also further deposed in his evidence that he and other police officers went in the jeep for the arrest of the accused in Crime No.674/1999. On the intervening night of 31/1/2001 and 1/2/2001 and he has recorded the voluntary statement of accused doddahanuma as per Ex.P.15. Venkatesh @ Chandra as per Ex.P.16, Munikrishna as per Ex.P.16. Nallatimma as per Ex.P.18 and Smt. Lakshmi as per Ex.P.19. He has recorded the statement of police, Ichanoor village.
50. In the evidence it is also further deposed by P.W.15 that on 6/2/2001 he got a video recording of the statement of the accused regarding the crime committed by the accused and video was recorded by one Sadashiva and Videography DVDs marked as 43 S.C.744/2001.
Ex.P.20. The programme telecasted in Udaya TV is as per Ex.P.21 and CDs marked as per Ex.P.22. Another DVD is marked as Ex.P.23. Statistics of cases produced by the witness as per Ex.P.24 in respect of the accused. The I.O. has deposed with regard to the conducting of the seizure mahazar in the shop of one Janardhana Shetty at Satyanarayana Jewellers and recovery of M.O.No.1 to M.O.5 and conducting of the seizure mahazars as per Ex.P.6, Ex.P.7, Ex.P,8 and Ex.P.9 and seizure of these articles in P.F. No.13/2001 gold and silver articles, P.F.No.14/2001, P.F.15/2001. These seizure panchanamas of golden articles made in the said Jewellery shop and owner Satyanarayana Shetty has admitted that he has purchased these articles from accused and he has produced the same at the time of conducting of mahazars. He has also further deposed in his evidence P.F. 16/2001 in respect of M.O.No.5. He seized the article M.O.5 under seizure mahazar. The I.O. has given the Television interview on 8/2/2001 in "Suttamutta" programme and he has recorded the voluntary statement of accused No.2 and the staff of the said Police Station were taken to the spot by the accused and shown the murder place of deceased Gita and robbing of golden articles. The said I.O. has produced the accused before the III A.C.M.M. Bengaluru for seeking 44 S.C.744/2001.
the remand and judicial custody and he has identified the accused No.1 to 5 before the Court.
51. In the cross-examination the learned counsel for the accused has suggested several questions stating that you have not at all conducted the seizure mahazar on 1/2/2001, 15/2/2001, 7/2/2001 and 8/2/2001 from the shop of Sri.Janardhana Shetty of Satyanarayana Jewellers and you have not gone to Ichanoor for the search of the accused and they have not caught hold the accused. It is also suggested that the I.O. has not recorded the voluntary statement of the accused. Witness has denied the same. It is also suggested in the cross-examination that you have not made the CD's through the videographer. Witness has denied the same. It is also suggested that the seizure panchas are all of the stock panchas of your police station, witness has denied the same, and it is also suggested that in the cross-examination that the I.O. has not conducted the spot mahazar. Witness has denied the same. It is also suggested in the cross-examination that he has not recorded the mahazar as per Ex.P.12. It is also suggested in the cross-examination that the I.O. has created these panchanamas as per Ex.P.5, 6, 8 and Ex.P.9. Witness has denied the same. It is also 45 S.C.744/2001.
suggested that he has not recorded the voluntary statements of the accused as per Ex.P.22 to 24. Witness has denied the same. In the further cross-examination it is suggested that on what date the Udaya T.V. channel people contacted you? According to his evidence on 8/2/2001, at about 7 a.m. they contacted and he has taken permission from jurisdictional Magistrate to provide interview of the accused persons to the T.V. channel. Thereafter "Sutta Mutta" programe was given. It is also suggested in the cross- examination that he has not conducted the investigation in Crime No.353/1999 and also in Vijayanagar Police Station in Crime No.674/1999. In the cross-examination it has been suggested that there is no nexus of the accused to this case and these accused are kept in illegal detention in isolated house at Kamakshipalya in order to give harassment. Witness has denied the same. It is also further suggested that the I.O. has foisted false case against the accused and they approached human rights Commission. Witness denied the same.
52. Accused No.1 to 5 gave the confession statement before the P.S.I. of Vijayanagar and Kamakshipalya police stations as follows :-
46 S.C.744/2001.
"Lakshmi, Vasantha, Padma, Savitri, Venkatalakshmi, Krishnudu were in search of houses and they identified the houses. Krishnudu came first and told that he has identified one house at Dasarahalli, and further he has told that ladies are at Magadi road. At that instance the accused No.1 and other accused Venkatesh @ Chandra, Munikrishna, Nallatimma, Krishnudu and Venkatesh @ Ramesh went there. Lakshmi entered the house of the first floor on the pretext of asking water and these other accused went behind the said accused and the wife of accused No.1 opened the door of the said house and other accused entered the said house. Venkatesh @ Ramesh was sitting in the front door for watching, Nallatimma has caught holded the said lady. Krishnudu caught holded the mouth of the said lady not to make any disturbance, Venkatesh @ Chandra with the knife in his hand stabbed the back of the said Gita and the accused No.1 has assaulted with the knife, that accused No.1 with his knife assaulted on the ear of said lady, later on Krishnudu assaulted on different parts of the body. Venkatesh @ Chandra has snatched the gold mangalya chain. Munikrishna has taken two pair of hangings which were in almirah. Accused No.1 taken one pair of ear stud, saree. Nallatimma has taken one pair of mati which were in almirah. Lateron, Munikrishna and Krishnudu's shirts were blood 47 S.C.744/2001.
stained. They have thrown the same and put the other shirt. Lateron, the accused while coming back, they have thrown the knife near the Kamakshipalya tank bush. The said accused have taken the saree from the house and gave to his wife. The said accused has robbed the ear studs and sold in the shop at Raja Market. He has also stated that if he has taken along with police to the murder spot and shop where he has sold the golden articiles will show the same and in that regard, confession statement were recorded by the Investigating Officer.
53. Accused No. 1 to 5 gave the confession statement similarly. The same is stated in the above paragraphs. The confession statement marked as per Ex.P.15, in respect of accused No.2 as per Ex.P.16, in case of accused No.3 as per Ex.P.17, likewise, for the accused No.4 it is marked as Ex.P.18 and for the accused No.5 it is marked as Ex.P.19. Admissibility of confessional statement under Section 27 of Evidence Act to rely upon the same is discretion of the court.
54. After completion of evidence, the learned Public Prosecutor has opened his arguments relying upon the confessions statements of the accused persons. The learned also further argued 48 S.C.744/2001.
that the accused No.1 to 4 have sold the robbed articles M.O.No.1 to M.O.5 to P.W.4 - Janardhan Shetty and he has admitted the same and gave the evidence before the court and the said witness was not hostile to the prosecution and he was also not in enmical terms with the accused. There is no proper cross-examination on the said point and there is no denial of the articles as they were not belonging to the wife of P.W.1 nothing is elicited from the mouth of said P.W.4 - Janardhan Shetty so as to helpful to the case of accused persons. Seizure is proved beyond reasonable doubt.
55. He has also argued before the court that by relying upon the evidence of P.W.5, seizure mahazar witness and his evidence is to be believed and he has supported for the case of the prosecution in respect of the seizure mahazars as per Ex.P.6 to Ex.P.9. Therefore, in support of his argument, he has also further relied upon the evidence of P.W.15 - and the said witness is the I.O. who has conducted the investigation and filed the charge-sheet against the accused and these accused were taken by the I.O. and they have shown the murder spot and P.W.3 - Puttaraju has supported the case of the prosecution and he has been called for the mahazar in the spot and at the murder spot at Agrahara Dasarahalli, 6th and 7th Main cross at House No.30, where the murder took place and in 49 S.C.744/2001.
that spot mahazar was conducted as per Ex.P.5 on 3/2/2001 and signature of the witness is marked as Ex.P.5(a) and in the cross- examination of the said witness, it has been suggested that this witness and accused were not lead to the murder spot and witness is deposing falsely and it is also suggested that spot panchanama is not at all conducted and accused were at Vijayanagar Police Station lockup and hence panchanama spot is not shown according to cross-examination portion, but witness has denied the same. Nothing is helpful to the case of the accused to discard the spot panchanama. As per Ex.P.11 - Saree was seized. It is also further clear from the evidence on record that accused No.1 - Doddahanuma has produced one pair of ear stud one leg chain and also one saree. Fifth accused also supported the same. Conducting of mahazar is supported in presence of the accused and blood stained clothes were seized in presence of the witnesses and it is clear from the records mahazar was conducted as per Ex.P.12 and blood stain shirt was wored by Munikrishna. All the accused were involved in so many robbery and murder cases and at that time the I.O. has requested the witnesses and they were one Hanumantegowda, Murthy, Kumaraswamy. All the articles were seized from the accused and also from the jewellery shop and there 50 S.C.744/2001.
is cross-examination by the learned counsel for the accused there is no supporting evidence by the defense how the accused No.1 to 5 came into possession of those articles and according to Section 27 of Indian Evidence Act, it is the burden of proof which lies always on the accused to say that how they came into possession of those articles and also they have to establish the same. In case if they do not establish the same, it can be held that they are robbed articles by themselves.
56. The I.O. has also made D.V.D. for Ex.P.20 and also recorded the confession statements of the accused and he has also recorded the other statements according to their evidence.
57. In the D.V.Ds' all the confession statements came. Further, it is clear that the accused have given the clear statement and they have not pressurized or threatened by the I.O. while recording the confession statement. Even at the time of recording 313 of Cr.P.C. statement, accused persons have not stated anything that the police officer has given harassment and threat at the time of recording of the confession statement. Neither in recording 313 of Cr.P.C. statement accused have not stated anything. Therefore the benefit of doubt cannot be given to the 51 S.C.744/2001.
accused as stated in the argument of the learned counsel for the accused.
58. The learned Public Prosecutor has argued that the accused have committed the offence of robbery along with murder and there is sufficient evidence to hold that the accused have committed the offences and there is chain of link in between the offences which is lead by the prosecution.
59. The learned Public Prosecutor in support of his argument has relied upon the following rulings.
1. AIR 1978 Supreme Court 1183 in between Mohan Lal and another V/s. Ajit Singh and another with regard to the interrogation by the police to the accused and also regarding their confession statement under Section 27 of the Evidence Act and reliability of the same and admissions of them stated in the said ruling.
Held that it could not be said that the accused was interrogated for several hours and that his disclosure statement was involuntary so as to attract S.24 of the Evidence Act. The evidence on the record was sufficient to show that the statement 52 S.C.744/2001.
was not only voluntary but it fell within the purview of S.27 of the Evidence Act inasmuch as the "fact discovered" was the place from which the various articles were produced by the accused and his knowledge of it. As the information given by the accused related to that important fact, it was clearly admissible under S.27 of the Evidence Act.
2. AIR 1954 Supreme Court 28 in between Sunderlal V/s. The State of Madhya Pradesh on the point of circumstantial evidence in respect of offence of murder as to how the accused came into possessioni of the golden articles.
Held that as the ornaments were established to be the ornaments worn by the deceased and the accused was not in position to give any satisfactory explanation as to how he came to be in possession of the same on the very same day on which the alleged murder was committed the circumstantial evidence was sufficient.
3. ILR 2001 Karnataka 4655 in between State of Karnataka, Hassan City Police V/s. Lokesh and others with regard to the participation of the persons in dacoity is satisfied, their personal identification becomes secondary.
53 S.C.744/2001.
A) Criminal Trial - Dacoity Cases -
Identification of the persons participating in dacoity - Absence of such evidence - Effect - Held - The law that applies to this class of cases lays down that if the Court is satisfied about the participation of the accused, the personal identification aspect becomes secondary.
B) Criminal Trial - Proof of discovery Panchanamas - Held - If the panchas are not available or unreliable, the panchanamas can be proved through the evidence of the Investigating Officer.
4) (1996) 1 Supreme Court Cases 614 in between Kartik Malhar Vs. State of Bihar with regard to Court may convict the accused if the evidence of single witness is found to be trustworthy A) Evidence Act, 1872 - S.134 - Solitary witness - Conviction on the basis of - Legality - Departure from English Law - Quality and not quantity of evidence matters - Court may convict if the evidence of the single witness is found to be trustworthy - Court not required to insist upon corroboration by other witnesses -
Criminal trial - Witnesses - Solitary witness.
5) 2011 Cri.L.J. 4399 in between Rafiq Ahmed @ Rafi V/s. State of Uttar Pradesh with regard to distinction in awarding 54 S.C.744/2001.
conviction for in respect of Section 302 and 396 of I.P.C. i.e, Dacoity with murder.
A) Penal code (45 of 1860) S.396, S.300, S.302 - 'Dacoity with murder' - And culpable homicide amounting to murder - Offence u/Ss. 396 and 300 - Distinction between - Intention of causing death is primary distinguishing feature between two offences - Under S.302 court cannot award sentence lesser than life imprisonment - While under S.396 discretion vests in court to award sentence of 10 years with fine or life imprisonment or death.
6) 2009 Cri.L.J.1556 in between State of Uttar Pradesh Vs. Sukhpal Singh and others C) Penal Code (45 of 1860), S.396, S.302 -
Dacoity and murder - Accused persons entered premises, looted licensed gun and other articles and also killed two persons and injured others - Charging accused u/S.396 and not u/S.302 - was proper.
7) 2006 Cri.L.J.123 in between Narayan Prasad and others Vs. State of Madya Pradesh A) Penal Code (45 of 1860), Ss. 395, 396 - Dacoity and murder - Evidence of recovery - Credibility - Allegations that accused persons entered into house at 55 S.C.744/2001.
midnight and assaulted deceased and looted ornaments of gold and silver - Death of deceased because of assault by dacoit - In view of fact that recovery of huge quantity of ornaments have been made at instance of accused persons duly identified by prosecution witnesses and there is no possibility of planting case against accused persons by police - Delay in recovery in such cases is not unusual - Conviction of accused persons under Ss. 395 and 396, proper.
8) AIR 2008 Supreme Court 3270 in between Arjun Mahto v. State of Bihar.
Penal Code (45 of 1860), Ss. 396, 395 -
Dacoity with murder - Accused armed with
deadly weapons entering into house of
informant - Informant and his father
seriously injured - Fatal injury caused to one of informants' brother - Accused thereafter looted articles in house -
Witnesses examined by prosecution were related to deceased - Out of 4 eye- witnesses evidence of 2 found to be cogent and credible
- Their evidence cannot be disbelieved because of relationship or because other eye- witnesses were disbelieved - Conviction of 56 S.C.744/2001.
accused proper - Passage of time held not sufficient to reduce sentence.
60. I have perused the rulings relied upon by the Special Public Prosecutor and heard his arguments and he has prayed for convicting the accused by imposing maximum sentence as per Section 396 and 302 r.w.s. 34 of I.P.C. In support of his arguments he has relied upon the chief-examination portion of the evidences of P.W.1 to P.W.15 and also Ex.P.1 to Ex.P.24 and prayed to consider the charge framed to both offences as stated above and to pass suitable conviction order.
61. The learned counsel for the accused has relied upon the following rulings.
I. VOLUNTARY INFORMATION NOT PROVED
1. AIR 1947 SC 67
2. 1978 (4) SCC 90
3. ILR 1994 KAR 491
4. 1996 Crl.L.J. 317
5. 1993 Cr.L.J 1489 II. CONFESSIONAL STATEMENT TO POLICE NOT ADMISSIBLE 57 S.C.744/2001.
1. AIR 1966 SC 119
2. 2005 (11) SCC 600 III RECOVERED ARTICLES ARE NOT PROVED TO BE OF STOLEN AT THE TIME OF INCIDENT
1. 1997 All India CrLR 547 (SC)
2. AIR 2014 SCW 2354 IV RECOVERED ORNAMENTS ARE OF COMMON DESIGN
1. 2003 SCC Cri 738
2. 2003 SCC Cri 1749 V MERE SEIZURE OF ORNAMENTS MAY NOT BE CONCLUSIVE CIRCUMSTANCE FOR OFFENCE OF MURDER
1. AIR 1956 SC 54
2. AIR 2017 SC 614
3. AIR 1980 SC 1753
4. 1997 All India CrLR 547
5. 1993 SCC Cri 999
6. 1994 SCC Cri 1783 VI CASE BASED ON CIRCUMSTANTIAL EVIDENCE AIR 1952 SC 342 58 S.C.744/2001.
VII FOR PROOF OF SECTION 396 IPC MINIMUM FIVE PERSONS REQUIRED 2008 (11) SCC 709
62. The learned counsel for the accused Sri.Hashmath Pasha has argued before the court that in respect of F.I.R. and also in respect of seizure there is a contradiction and omissions and the court has to consider the same in respect of contradictions and omissions. The averments as stated in the F.I.R. which is very clear and he has mainly relied upon the F.I.R. averments at the time of arguments. F.I.R. is marked as Ex.P.14 and in support of his argument he has enlightened the court with regard to the F.I.R. I have gone through the complaint and also its contents. Complaint is dated 7/11/2000 which has been given by none other than the husband of the deceased Smt.Gita and his complaint is very much specific that he went to the duty at about 9.30 a.m. and also children had went to the school at the morning hours and the children returned to the house earlier to him at about 4.30 p.m. but he returned home only on telephonic call at about 6 p.m. stating that there was a galata in his house and immediately rushed to the house. Soon after giving of complaint, F.I.R. came to 59 S.C.744/2001.
be issued by the concerned police and there is no delay as such by the police. The original F.I.R. is marked as Ex.P.14. The contents of Ex.P.14 clearly reveals that F.I.R. was issued on the same day i.e., 7/11/2000 at about 7.15 p.m. for the alleged offences which has been committed during the period of 10.30 a.m. to 7.00 p.m. Further it is clear that the said F.I.R. was dispatched to the house of the Magistrate on 7/11/2000 and it has reached the Magistrate at about 10.45 p.m. The argument of the learned counsel for the accused is that there are contradictions and omissions in the contents of F.I.R. and according to him all the articles were in the house itself and they were missing and the complainant has expressed the doubt about one Mr.Ravi who is chit business dealer. There was suspicion by the complainant against him only and the Investigating Officer has not investigated the case against Mr.Ravi who was running chit business. Further his argument is that he has accepted the post mortem injuries as noted by doctor as stated in the post mortem report as per Ex.P.13 and further the said person who has conducted the post mortem is also examined before the court and there is no dispute about the said evidence by the learned counsel for the accused.
60 S.C.744/2001.
63. The learned counsel for the accused has further argued that the injuries as mentioned in the post-mortem report is also not disputed as there was evidence of the said P.W.12, the doctor and supported by the post-mortem report Ex.P.13. The evidence of the doctor P.W.12 who has conducted the said post-mortem is of the opinion that the injuries are all stab injuries caused due to a sharp weapon in his evidence at page No.2. He has opined that there were cut injuries and the blood was oozing from body of said deceased Gita. The learned counsel for the accused has admitted the said portion of the post-mortem report and according to his argument, if the blood was oozing in the house and weapon is also stained with the blood, why the Investigating Office has not sent and weapons and blood to the sereological report and hence he has expressed his doubtfulness in the investigation and the investigation is not proper and reasonable one and hence he prays for the acquittal on the said ground.
64. In support of his argument, he has relied on the ruling reported in 1978 (4) SC page 90 in between Chandran V/s. The State of Tamilnadu 61 S.C.744/2001.
A. Criminal Procedure Code, 1973 -
Section 164(4) - Magistrate not filing memorandum as required by the section -
When a matter of form curable by his oral testimony.
B. Criminal Procedure, 1973 - Section 164(4) - Magistrate certifying that he "hoped" the confession of accused was voluntary and not that he "believed" that the confession was voluntary - Confession cannot be used as evidence against the accused C. Evidence Act, 1872 - Section 27 -
Evidence of recovery of incriminating article in the absence of record of the statement cannot be relied upon - Confessional statement leading to the recovery must be proved.
D. Evidence Act, 1872 - Section 27 -
Gap of 23 days between the murder and the recovery - Effect E. Evidence Act, 1872- Section 27 -
Recovery of incriminating articles from a hut not within the exclusive possession or control of the accused - Effect 62 S.C.744/2001.
F. Penal Code, 1860 - Sections 302 and 411- Recovery of jewels of deceased by police at the instance of accused - Whether inference of murder can be drawn or only that accused was receiver of stolen property G. Criminal Trial - Appreciation of evidence - Recovery of clothes of deceased by police at the instance of accused after 23 days of the murder - Weight to be attached.
and he submitted that the recovery is not proper as per Section 27 of the Evidence Act for proof of the offence alleged against the accused and recovery is doubtful and it is based on the contradictory statement, confession statement and those recoveries are not at the instance of the accused, but the Investigating Officer has taken the accused directly to the shop of P.W.4 - Mr.Janardhan Shetty wherein the statement of the accused were recorded under Section 27 of the Evidence Act supporting that they have lead the police officer to the spot and shown the shop of P.W.4 Mr.Janardhan Shetty, the owner of the said Jewellery shop, at Chickpet, Bengaluru. The list have been produced M.O.1 to M.O.5 and even though the seizure panchanama is conducted as per 63 S.C.744/2001.
Ex.P.6, Ex.P.7 and Ex.P.8 in the shop of P.W.4 which is doubtful according to him and it is not at the instance of the accused the seizure panchanama was conducted. But it was conducted at the instance of the Investigating Officer and the said P.W.4 - Jewellery shop owner is a businessman and he was stock witness according to him and hence the evidence of the said witness is not reliable and helpful to the case of the prosecution. In that regard the learned counsel for the accused has relied upon ILR 1994 KAR 491 in between Vijayakumar V/s. State.
Evidence Act, 1872 (Central Act No.1 of 1872) - Section 27 - information as leads to discovery of fact to be proved like any other fact - Recording in deposition of Investigating Officer, that particular statement recorded as exhibited, does not take place of substantive evidence - Duty of Session Judges and Correct approach.
65. Further, he has relied upon the ruling with regard to the voluntary statement of the accused as reported in 1996 Cri.L.J. 321 in between Harabailu Kariappa and others V/s. State of Karnataka as the case of the prosecution is based on the 64 S.C.744/2001.
voluntary statement and the witnesses of the case are only interested witnesses. P.W.1 is the husband and P.W.4 - Mr.Janardhan Shetty and other panch witnesses and Investigating officer including the mahazar witnesses. But the value of the said evidence is to be appreciated according to his argument in the above said 1996 Cri.L.J. 321 ruling wherein it is held that A) Evidence Act (1 of 1872), S.3 -
Interested witness - Credibility - Witnesses being interested or related to deceased or to some party in case - Not a ground to reject their testimony.
66. Further, to appreciate the entire evidence of the prosecution witnesses he contended that the case of the prosecution is based upon the said evidence and in that regard he has relied upon 2005(11) SCC page 600 in between State (NCT of Delhi) V/s. Navjot Sandhu @ Afsan Guru.
67. The case of the prosecution is made an exaggeration by giving statement by the Deputy Commissioner of Police with regard to the said evidence to the media etc., and for a recording the C.D. etc., which is not permissible according to the Evidence Act, unless 65 S.C.744/2001.
investigation is completed and the similar mistake was committed, mentioned in the said ruling at paragraph 176 it runs thus :-
We may also refer to the contention advanced by Sri Ram Jethmalani, learned Senior Counsel appearing for S.A.R. Gilani with reference to the confession of Afal. Sri Jethmalani contended that Afzal in the course of his interview with the TV and other media representatives, a day prior to the recording of a confession before the DCP, while confessing to the crime, absolved Gilani of his complicity in the conspiracy. A cassette (Ext.DW-4/A) was produced as the evidence of his talk. D.W.4 a reporter of Aaj Tak TV channel was examined. It shows that Afzal was pressurized to implicate Gilani in the confessional statement, according to the learned counsel. It is further contended by Sri.Jethmalani that the statement of Afzal in the course of media interview is relevant and admissible under Section 11 of the Evidence Act. Learned counsel for Afzal, Sri Sushil Kumar did not sail with Sri. Jethmalani on this point, realizing the implications of admission of the statements of Afzal before the TV and press on his culpability. However, at one stage he did argue that the
66 S.C.744/2001.
implication of Gilani in the confessional statement conflicts with the statement made by him to the media and therefore the confession is not true. We are of the view that the talk which Afzal had with the TV and press reporters admittedly in the immediate presence of the police and while he was in police custody, should not be relied upon irrespective of the fact whether the statement was made to a police officer within the meaning of Section 162 Cr.P.C. or not. We are not prepared to attach any weight or credibility to the statements made in the course of such interview prearranged by the police. The police officials in their over-zealousness arranged for a media interview which has evoked serious comments from the counsel about the manner in which publicity was sought to be given thereby. Incidentally, we may mention that P.W.60 the DGP, who was supervising the investigation, surprisingly expressed his ignorance about the media interview. We think that the wrong step taken by the police should not enure to the benefit or detriment of either the prosecution or the accused.
67 S.C.744/2001.
68. According to his argument, in the parliament attack case, before starting of the investigation, in the television, interview was given and it was hit by Section 25 and 27 of Indian Evidence Act and also under Section 162 of Code of Criminal Procedure as stated in the said ruling and the police officials and media persons are over jealous in arranging for media purpose. Therefore, the said investigation cannot be looked into and hence he prays to set- aside.
69. According to his submissions and arguments before the Court that the learned counsel for accused Sri.Hashmath Pasha has argued and contended that the F.I.R. came to be issued on 7/11/2000. But the Investigating Officer has started the investigation on 31/1/2001. He went to Itchanur village of Tiptur Taluk, Tumkur District and caught hold the accused during night time and FIR was brought to the police station and interrogation was started, soon after the arrest of the accused. Therefore, the voluntary statement as recorded by the Investigating Officer in respect of accused No.1 Doddahanuma as per Ex.P.1, Venkatesh as per Ex.P.16, voluntary statement of Munikrishna as per Ex.P.17 and voluntary statement of Nallatimma as per Exp.18 and voluntary statement of Smt.Laxmi as per Ex.P.19 are not reliable.
68 S.C.744/2001.
Investigating Officer has started the investigation by giving "Sutta Mutta" T.V. Programme which was telecasted in Udaya T.V. Hence, more importance was given by the prosecution for the media and exaggeration of the case, than the real picture involved in the case. Hence he prays to discard the entire evidence of the witnesses of P.W.14 and P,W.15. Further he has argued before the Court relying upon the ruling reported in 2003 SCC (Cri) 1749 in between Babudas V/s. State of Madhyapradesh C. Criminal Trial - Search and seizure
- Opening of the sealed article (wristwatch) and resealing of the same before producing it in court - Opening and resealing in the absence of original panchayatdars (PW's 17 and 19) who appended their signatures to the sealed packet - Held, the very purpose for which the wristwatch was packed and sealed with signatures of PWs 17 and 19 was lost by the opening of the packet in their absence - Thus, recovery held to be doubtful.
D) Criminal Trial - Search and seizure-
Change in packaging of the sealed article - Inability of IO to give any explanation therefore - Seizure held to be doubtful.
69 S.C.744/2001.
70. Search and seizure is also doubtful from the date of offence, the date of arrest of the accused there is approximate delay of two months 23 days. Hence, investigation is not within the stipulated period. But, anyhow the I.O. has got the power to investigate the case and submit the charge-sheet within a period of 90 days. The I.O. is not supposed to submit the charge-sheet paper soon after investigation and there is no bar for him to conduct investigation within stipulated period of 90 days and even arrest and interrogate the accused soon after arrest of them. In this case the search and seizure was only made at the instance of the accused himself. He has taken the said accused to the spot where they have pledged the golden articles in the shop of Janardhan Shetty P.W.4. Whereas the entire panchanama as per Ex.P.6, Ex.P.7 and Ex.P.8 was conducted and the owner of the shop has produced the articles and the signature of the witnesses were marked as per Ex.P.6(a) to Ex.P.8(a). In the further chief M.O.1 to M.O.5 were seized as per panchanama as per Ex.P.6 to Ex.P.9. M.O.1 mangalya M.O.2 and M.O.3 red stone and pearls hangings. M.O.4 is gold mati. M.O.5 is pair of gold ear stud. All the articles were seized by the I.O. in presence of the witness P.W.4 and in the 70 S.C.744/2001.
cross-examination of the said witness nothing has been suggested except denial of conducting of the panchanama in the shop of P.W.4 and the said P.W.4 is alleged to have been stock witness and he has not maintained the accounts etc., Hence he has co-operated the panchanama. Except this denial, there is nothing on record to show that the seizure panchanama was not conducted in the shop of P.W.4 and on the other hand, there is a complete chain of evidence to connect the accused subsequent to the F.I.R. and subsequent to Inquest Panchanama. Missing of articles from the house of deceased Gita stated by P.W.1 and also the other relevant witnesses P.W.14 and P.W.15 and the blood was also oozing in the spot. Therefore, the court comes to the conclusion that the blood was there at the spot to connect this accused that they are not only robbed but also murdered Gita and to establish the murder, sufficient evidence is required and it is also admitted to be true that this is a case based on the offence under Section 396 dacoity with murder and another murder 302 r.w.s. 34 of I.P.C. They are standing on the same footing. Therefore, at the time of giving a reason judgment, the court has to weigh the evidence under Section 354 of Cr.P.C. stating that whether the accused have committed the murder for the gain or not. On one hand, the 71 S.C.744/2001.
learned counsel for the accused has contended before the court that accused have not at all committed the offence of dacoity with murder and subsequent to the offence murder, false case is foisted by the police against the accused persons and there is no incriminating evidence and sufficient corroborative evidence to prove the offence and to prove the chain of link for the accused and for the offence committed by them, there were no witnesses available at the spot. Hence he prays to give the benefit of doubt. According to the case of prosecution as narrated in the charge- sheet, the house of P.W.1 is in the first floor and there are no surrounding houses and the eye witness are also available in the ground floor and the children of P.W.1 soon after coming from the school, they informed to the neighbouring owner of the house i.e., lady who have called P.W.1 at the instance. Only on the information of the said lady, P.W.1 came to the spot. Therefore, at this stage, when there is no eye witness near by the spot and when there is an offence committed within the four walls of the house, it is very difficult to get the eye witness and in all reasonable circumstances, the court has to infer from the common sense and also from the reasonableness in the case of the prosecution and about the circumstances available at the spot the recovery of the 72 S.C.744/2001.
said golden ornaments from the accused is only ground to prove the offence. Therefore, the section 27 of the Evidence Act is aptly applicable to the facts of the case and seizure is in accordance with law according to the evidence of Investigating Officer P.W.15.
71. The learned counsel for the accused has relied upon ruling reported in 2003 SCC Cri. 738 in between Bharat V/s. State of Madhya Pradesh B. Evidence Act, 1872 - S.27- Seizure of stolen property, recovered from accused's house pursuant to accused's statement under S.27 - After the alleged recovery, the recovery document was got signed from the witness and thumb impression of accused taken - Witnesses signing the seizure memo at the instance of police office on the dotted lines - Held, evidence of the police officer unreliable - No reliance can be placed on the evidence regarding recovery of the ornaments on the testimony of the police officer.
C. Penal Code, 1860 - Ss.302 and 394 -
Circumstantial evidence - Chain of circumstances must be complete - Non-
73 S.C.744/2001.
explanation by accused in his statement under S.313 Cr.P.C. - Effect - Murder of a woman - Motive alleged to be robbery of ornaments worn by the deceased - Appellant last seen with the deceased on Jan.8 - Dead body of deceased recovered on Jan.13- Prosecution failed to establish that death took place on Jan.8 itself as according to medical evidence it could have taken place at the earliest on Jan.10 - Ornaments recovered from appellant's house on the basis of statement made by him under S.27 of Evidence Act - But neither proper and legal identification of the ornaments nor on exclusion of the evidence of recovery and identification of the ornaments, the only circumstance was regarding the deceased having left with the appellant on Jan.8 on the basis of which it cannot be held that prosecution established the charge against the appellant only on the ground that appellant failed to offer any explanation in his statement under S.313 Cr.P.C.
72. According to learned counsel for accused, seizure and recovery are not at all proved beyond reasonable doubt. Hence the 74 S.C.744/2001.
case of the prosecution has to go in accordance with the Evidence Act only and not otherwise. Hence, he prays to give the benefit of doubt to the accused and prays to acquit the accused.
In support of his argument the learned counsel for the accused has relied upon the ruling reported in 1997(2) All India Criminal Law Reporter page 547 in between Mohd. Aman and another V/s. The State of Rajasthan Even though the specimen finger prints of Mohd. Aman had to be taken on a number of occasions at the behest of the bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger prints of the accused but to dispel any suspension as to its bonafides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate.
73. Further he has also argued that finger prints and foot prints were not taken from the house of the accused wherein the 75 S.C.744/2001.
I.O. is competent to get the finger print experts evidence. But, he has not taken the help of the expert evidence in respect of finger prints and even the blood stained knife is not at all recovered from the spot. Hence, a clear doubt has been raised stating that even the seizure panchanama etc., conducted at the spot during the course of investigation with regard to the recovery of the weapon knife etc, even if it is admitted to be true, one comb stained with blood, golden articles and clothes M.O.8 to M.O.15 were stained with the blood why the I.O. has not sent the articles to the serologist and not taken the expert opinion. Whether they are stained with human blood or not and in that regard he has raised doubt and objections and the said objection is over ruled for the time being as the evidence of the prosecution is based on the evidence of P.W.1 and the P.W.4 and some of the evidences of the P.14 and P.W.15 who have conducted the investigation raised the doubtfulness against the accused and the learned counsel for the accused contention cannot be accepted because these accused persons were habitual offenders at Bengaluru and they were wandering here and there and there were several cases against them booked under different Sections of IPC. Therefore, his argument cannot be accepted as these persons were not accused because the principle of habitual 76 S.C.744/2001.
offenders will apply only on the basis of habitualness. The I.O. has got the suspicion and arrived at conclusion that these accused have committed the offence and the same has been proved and ended in recovery as per evidence of P.W.4 and also as per the confession statements of the accused. Therefore more credence and reliability is to be given on balancing view because there is no evidence and accused were apprehended immediately and investigation started as usual in other cases. Hence, this case was mixed up in other cases wherein the habitual offenders have committed the offences. The ruling as relied upon is not applicable.
74. The learned counsel for the accused has relied upon the ruling reported in AIR 1956 SC 54 in between Samvat Khan and another V/s. State of Rajasthan Evidence Act (1872) S.114, Illustration (a) - Possession of stolen property.
No hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the 77 S.C.744/2001.
theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.
From the solitary circumstance of the unexplained recovery of the two articles from the houses of the accused the only inference that can be raised in view of illustration (a) to S.114 is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.
75. His contention is that merely on the basis of possession of stolen articles from somebody these accused cannot be fixed and these accused were taken to the custody and during the course of interrogation only, confession statements were recorded under Section 27 of the Evidence Act which is weak type of evidence and even by threat, coercion and by force also the police officer can take the statement of these accused. Hence, they are not believable and 78 S.C.744/2001.
hence much credence cannot be given to such statements. Hence prays to acquit the accused on the said ground also.
76. I have gone through the confession statement recorded by the Police and the police have written each part of the statements of the accused wherein they have committed different offences and all offences are cruel in nature and gruesome and they are apparently against the nature of the human conduct and ability to commit such offences and will of the accused have forced them to commit these offences only for gain by sale of golden articles. Therefore, at this juncture the argument as advanced by the learned counsel for the accused does not stand on the same footing as he has argued in other cases because the judgment of the trial court is to be based on reasoning. I have already stated the accused are habitual offenders. Hence, I.O. has booked the case against the accused on certain piece of evidence available against them. Even beyond reasonable doubt, appears to be not made. But, at the spot there were no evidences available. Hence, it is a doubtful case. Although the bulky evidence is there by the prosecution for proof of the offence which connects the chain of circumstances which lead them and they have taken these accused from the spot and after 79 S.C.744/2001.
interrogation and after complete recovery the I.O has filed the charge-sheet within 90 days as provided under Section 173 of Cr.P.C. Therefore, when the charge-sheet is filed before the magistrate within the stipulated time and when he commits the case to the court of session, the court of session has to look into the evidence on record which is lead by the prosecution and not the statement of the witnesses recorded by the police officer under section 161 of Cr.P.C. statement. The learned counsel for the accused has also relied upon two more rulings AIR 2017 S.C. 614 in between Rajkumar @ Raju V/s. State (NCT of Delhi) A) Evidence Act (1 of 1872), S.3 -
Circumstantial evidence - Last seen theory - robbery and murder case - Deceased found lying dead in house in ..............
10) Learned counsel for the appellant would contend that the aforesaid circumstances do not conclusively point to the involvement of the accused appellant in the crime. The chain leading to the sole conclusion that it is the accused persons and nobody else who had committed the crime is not established by the three 80 S.C.744/2001.
circumstances set forth above, even if all of such circumstances are assumed to be proved against the accused. Reliance has also been placed on the decision of this Court in the case of Sanwath Khan and Anr.
V. State of Rajasthan, wherein this court had taken the view that recovery of ornaments of the deceased from the accused or production of the same by the accused in the course of investigation, howsoever suspicious cannot be conclusive of the question of the accused having committed the offence. As per Illustration (a) to Section 114 of the Evidence Act, 1872 though recovery of the ornaments can lead to presumption that the accused had committed robbery or received stolen property, unless there are circumstances to show that the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offence under Section 302 I.P.C.
11. The facts in Sanwant Khan (supra) bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of P.W.12 is to be discarded on the ground that such evidence is vague, (there is no mention of the date on which P.W.12 had 81 S.C.744/2001.
seen the accused person in the neighbourhood and also as the said
testimony runs counter to the prosecution case about arrest of the accused on 16/9/1991) the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e., 12/9/1991 and that they were going away to some other place. Even if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused.
82 S.C.744/2001.
77. The recovery itself is not proved beyond reasonable doubt. Hence, he prays for acquittal of the accused and his argument is based on sound reasons also but it is opposed by learned SPP. A balancing view is to be taken even in suspicious cases also. Otherwise there will be no alertness on the part of I.O. and the entire investigation cannot be thrown out as there is no evidence against the accused. Hence, he prays to convict the said accused in accordance with the evidence and also materials placed before the court and also circumstances of the case.
78. The learned counsel for the accused relied upon AIR 1980 SC page 1753 in between Nagappa Dondiba Kalal V/s. State of Karnataka .........
4. Counsel appearing for the State submitted that as the accused had given no explanation, therefore, the inference should be drawn that he must have murdered the deceased. We are, however, unable to draw any such inference. It is for the prosecution to prove its case affirmatively and it cannot gain any strength from the conduct of the accused in remaining silent. In these 83 S.C.744/2001.
circumstances, we do not find any evidence to support the conviction of the appellant under Section 302 or under Section 394 but having regard to the evidence led by the prosecution, a case under Section 411 of I.P.C. has been clearly made out. We therefore, allow this appeal to this extent that the appellant is acquitted of the charges under Section 302 and 394 but is convicted of the minor offence of Section 411 of IPC and sentenced to three years rigorous imprisonment and a fine of Rs.5,000/-
(Rupees five thousand only) in default one year's rigorous imprisonment.
Relying upon said ruling contended that the purchaser of the stolen articles and is part of evidence in what manner is to be looked into and whether the accused is liable to be convicted under Section 411 of IPC. I have looked into all aspects of the case and the offence under Section 411 is a minor offence. Hence, it cannot fall under Section 411 of IPC.
79. The learned counsel for the accused has relied on the ruling reported in 1993 SCC Cri.999 in between Union Territory of Goa V/s. Beaventura D'souza and another 84 S.C.744/2001.
9. It is only in this context the courts have to be careful. Suspicion, however, strong cannot take the place of proof. As already pointed out the learned Sessions Judge drew a presumption that since the accused did not give any explanation for the possession of the stolen articles then it must be presumed that they committed the murder also. This finding to the extent it goes against the accused does not stand scrutiny in the eye of law. Unless there is something else to show that the accused alone were in the company of the deceased and in the absence of any explanation then perhaps a presumption can be drawn but even that depends upon the facts and the circumstances of each case. The illustration of Section 114(a) of the Evidence Act is to the effect "that a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he cannot account for his possession." No doubt in some given cases the presumption is further extended to the extent of holding that such person committed the offence of murder also. In this case, we are satisfied that there are no such 85 S.C.744/2001.
circumstances to connect the accused with the murder. The only presumption that can be drawn by holding them guilty under Section 411 of IPC and that is to say that they have not explained the possession of stolen property. In the result, we confirm the acquittal of the two respondents in respect of all the charges but for the reasons stated above we convict them under Section 411 IPC. Each of the respondents is sentenced to undergo rigorous imprisonment for one year. The appeal is disposed of accordingly.
80. He prays the court on ground of suspicion accused may be acquitted and ------------------------------------------further also argued that there were no facts and circumstances to prove the offence as accused were in possession of the stolen articles. Therefore, the contention as raised by the learned counsel for the accused as per said ruling is not applicable. The offence is not under section 411 of IPC but it is under section 396 of IPC dacoity with murder. Therefore, a little higher pedestal the case of the prosecution is based upon and his argument is based on higher pedestal of the supreme court rulings and his arguments is to get 86 S.C.744/2001.
acquit all accused 1 to 5 he has strenuously argued before the court to appreciate and rely upon the cross-examination portion of the evidences P.W.1 to P.W.15 I have looked into both chief examination and as well as cross-examination of witnesses and there is relevancy in the evidence but some chain of evidence is missing and it is the evidence of eye witness and also the circumstantial evidence.
81. Further, relied upon AIR 1952 SC 343 (1) in between Hanuman Govind Nargundkar and another V/s. State of Madhyapradesh Criminal P.C. (5 of 1898), S.367 -
Appreciation of evidence - Circumstantial evidence - Duty of Court.
In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases is always the danger that conjecture or suspicion may take the place of legal proof.
In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully 87 S.C.744/2001.
established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and that they should such as to exclude every hypothesis, but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
82. He has also relied on the ruling reported in AIR 2014 SCW 2354 in between Prakash V/s. State of Karnataka ..........G) Evidence Act (1 of 1872), S.27 :-
Evidence as to recovery - Ornaments belonging to deceased allegedly recovered at instance of accused from other persons -
None of recovered ornaments from witness could be connected to deceased - Mere recovery of some ornaments from some people does not lead to any conclusion that ornaments so recovered belonged to deceased.
88 S.C.744/2001.
83. The learned counsel for the accused has also relied on the following judgments passed by the Hon'ble High Court of Karnataka Bengaluru with respect to the accused persons of this case along with few other accused.
Sl. Case No. No. 1 Crl.RC. No.8/2010 C/w. Crl.A.No.1331/2010 C/w. Crl.A. No.712/2011 2 Crl.RC. No.9/2010 C/w. Crl.A.No.152/2011 C/w. Crl.A. No.1031/2011 3 Crl.RC. No.10/2010 C/w. Crl.A.No.1032/2011 C/w. Crl.A. No.537/2012 4 Crl.RC. No.12/2010 C/w. Crl.A.No.1278/2010 C/w. Crl.A. No.1030/2011 5 Crl.RC. No.16/2010 C/w. Crl.A.No.738/2011 6 Crl.RC. No.13/2010 C/w. Crl.A.No.521/2011 C/w. Crl.A. No.795/2011 7 Crl.RC. No.14/2010 C/w. Crl.A.No.799/2011 C/w. Crl.A. No.637/2012 8 Crl.RC. No.17/2010 C/w. Crl.A.No.158/2011 C/w. Crl.A. No.1027/2011
84. In the above set of cases, accused persons are acquitted in six cases. In the remaining two cases, the Hon'ble High Court of Karnataka in its judgment dated 16/8/2017, has convicted the accused persons for the offence punishable under Section 392 of I.P.C. in Crl.R.C.No. 17/2010 and sentenced them to undergo rigorous imprisonment for a period of ten years and a fine of 89 S.C.744/2001.
Rs.10,000/- each and in default of payment of fine, each accused shall undergo imprisonment for a further period of one year.
85. The Hon'ble High Court of Karnataka in its judgment dated 04/9/2017, has convicted the accused persons for the offence punishable under Section 394 of I.P.C. in Crl.R.C. No.14/2010 and sentenced them to undergo rigorous imprisonment for life and a fine of Rs.25,000/- each and given setoff under Section 428 of Cr.P.C.
86. By perusal of these judgments one of the judgment passed in Crl.R.C.14/2010 can be taken into consideration as a precedent and on the ground of parity in respect of the nature of the offence and also in view of the similarity in the offenders and also the evidence on record, is even though based on the evidence of the P.W.4 - Janardhan shetty who is the purchaser of gold articles in the panchanama mahazars Ex.P.6 to Ex.P.9 the recovery is proved according to the argument of the learned Public Prosecutor as per several decisions relied upon by him. Any one of the decision relied upon by him can be taken into consideration for the proof of the case. It is not necessary to go through each and 90 S.C.744/2001.
every witness in search eye witness evidence. When the recovery is proved and when the articles are seized and there is no dispute about the articles by the P.W.1 in those circumstances of the case on hand the court comes to the conclusion that why the evidence of P.W.4 the purchaser of golden articles cannot be taken into consideration for the proof of case. There are series of cases against the accused and the court is established as a special court to conduct the case of the accused of Dandupalya. There are number of cases against the accused and they are already convicted in one of the case Crl.RC No.14/2010.
87. So, in view of the evidence on record in respect of the witnesses they have deposed clearly with regard to recovery panchanama and also seizure panchanama and spot panchanama and the relevant point of time these accused were habitual offenders committing offences here and there. When once these accused were caught holded as habitual offenders and there is a police record against these accused as they were committing similar offences in different parts of the state viz., Bengalore, Mysore, Mangalore, Hubli, etc., The police have maintained the record of habitual offenders. Only on the basis of the said ground, 91 S.C.744/2001.
the police have taken into consideration such types of offences are committed by these accused here and there mercilessly and in each house they are entering the house with one pretext or other and murdering the persons for the wrongful gain to rob and dacoit them with gold and other articles. Therefore, history sheets of the accused are also important to consider whether the accused are really offenders are not. When the history sheets are followed and it is not necessary as argued by the learned counsel for the accused to go through the evidences of expert witness evidence to take the finger print at the spot of murder on the almirah and taking of the blood from the house which was stained on the comb etc., is required to be made but it s not necessary because the history records are there as they are habitual offenders. Therefore, if the prosecution proves that these accused are habitual offenders in those circumstances of the case on hand the I.O. the P.W.15 Chalapathy who has conducted the investigation and filed charg- sheet within 90 days and investigation was completed as per 167(2) of Cr.P.C.
88. Hence, the court cannot throw the entire evidence of prosecution as it is not believable and there is some evidence with 92 S.C.744/2001.
regard to evidence of complainant, seizure and spot mahazar witnesses and recovery panchas and the I.O. evidence. Therefore, strict proof of case even according to the section 27 of the Indian Evidence Act is based on confession statement, the accused have not whispered anything in the 313 Cr.P.C. statement that the I.O. has taken these confession statement under the coercion, and threat. The right of the accused to say anything is not curtailed while they were in judicial custody. Therefore, it cannot be held that the investigation is not proper or improper. When the case is looked into on both angles from prosecution as well as from defence side, a balancing view is to be taken. In that regard, neither there is enmity by the police officer who has registered case against the accused persons. The P.W.4 - Janardhan Shetty is also not having enmity with these accused persons. None of the prosecution evidence witnesses have no enmity with the accused to depose against them in heinous offences like murder and dacoity and the entire evidence of prosecution P.W.1 to P.W.15 cannot be thrown out as it is not based on sound reasoning. The I.O. are conducting investigation wherever there is criminal activities and when once the case is booked and when once these accused are apprehended, 93 S.C.744/2001.
and they become habitual offenders before this court by referring all the different cases against them filed by the I.O.
89. The learned Public Prosecutor argued that as per ruling reported in 1996 SCC Criminal 188 Kartikmallar V/s. State of Bihar. In that regard, he has stated that the prosecution evidence is to be weighed and not to be counted.
Evidence Act Sec. 134 Solitary witness
- Conviction on the basis of - Legality -
Departure from English Law - Quality and not quantity of evidence matter - Court may convict if the evidence of the single witness is found to be trustworthy - Court not required to insist upon corroboration by other witnesses - Criminal trial witnesses - Solitary witness - Para 14 it is open to the court to record the conviction on the basis of the statement of a single witness provided the evidence of that witness is reliable, unshaken and consistent with the case of prosecution. The case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only eye witnesses, nor can it be insisted that the Corroboration of the statement of that 94 S.C.744/2001.
witness was necessary by other eye
witnesses.
90. It is also argued by the learned Special Public Prosecutor that the Investigating Officer has given the accused to the electronic media by T.V. of Bengaluru and Police Commissioner Sri.T.Madyal has given interview stating that accused have committed the offences in different parts of the State and seized 8 lakhs worth articles and the publication was made on 7/2/2001.
91. Mahazar was conducted on 8/2/2001 a mahazar was conducted in presence of P.W.5 and seized the articles. Commissioner has also stated Rs.8,00,000/- worth articles were seized under different mahazars. Even though suspicious in nature witih regard to the articles prior to the commission of the offence and later on articles were seized on 7th and 8th of 2001 and mahazar was conducted. Evidences were created. The argument of the learned counsel for the accused to deny the case of the prosecution as all the seizure mahazars are created etc., and the said argument does not holds good.
95 S.C.744/2001.
92. The learned Public Prosecutor has submitted that he does not want to argue anything because, as per the Order of the Hon'ble Supreme Court, Court is also not competent to take any action against the media persons as in this case. Accused were given confession statement on 1/2/2001 before the police and they have stated where the accused have committed the offence and what articles they have robbed etc., and where they have sold are also stated. The Police Commissioner has also given the Press Statement. The value of the articles the press statement and other materials cannot be given much weight. It is also further argued by the learned counsel for the accused that in order to deviate the investigation the police have diverted the route. The police have not conducted the investigation against real accused and real accused were escaped and in that regard it cannot be taken into consideration and he has also further argued the accused were sold the articles M.O.1 to M.O.5 to the P.W.5 and those articles stated to belong to wife of P.W.1 and P.W.1 has identified the same. Further accused in 313 Cr.P.C. Statement have not denied with regard to the possession of the articles and how they came into possession and why they have sold the same to P.W.5 if they are not in possession of the same. The evidence in that regard is to be 96 S.C.744/2001.
scrutinized and the accused committed murder of deceased Gita and robbed the articles in the said house from the person of the Gita and also other articles in the house were also robbed by the accused and it is fact on record. In these circumstances of the case on hand the Court has to weigh the evidence of the prosecution in this case.
93. It is also further argued in this case by the learned counsel for the accused stating that the accused have not given any confession statement and also there was no identification parade of the accused by investigation officer. Hence in these circumstances of the case, the incident took place and accused caught holded secured, seized the articles. According to the contention of the learned counsel for the accused the dates are different in all respects including the identification parade and confession statement etc., and hence prosecution has failed to prove this case beyond reasonable doubt and there are no direct evidence to corroborate that the accused have committed the offence and the evidence of the case of the prosecution is based on the circumstantial evidence and these accused have not committed the offence.
97 S.C.744/2001.
94. The case of prosecution is based on the oral evidences of witnesses. My learned predecessor has only convicted the accused persons under Section 396 r.w.s. 34 of I.P.C. by forming the points in the Kannada language and the sections for the offences under Section 396 only and as well as for the offence of murder under Section 302 of I.P.C. was not mentioned. Therefore the Hon'ble High Court of Karnataka while accepting the argument of the learned counsel for the accused, allowed the appeal and remanded back the case to this Court. The learned Special Public Prosecutor has argued before the court contending that when the offence under Section 396 r.w.s. 34 of I.P.C. is proved, why the court has not taken into consideration the other offence of 302 r.w.s. 34 of I.P.C. where the robbery and dacoity took place in the said house the murder has also taken place. Therefore, his argument is to consider the case of prosecution for both offences of murder and dacoity and prays to arrive at a correct conclusion based on the material evidence on record.
95. Learned counsel for the accused Sri.Hasmath Pasha has argued before the Court in accordance with the rulings of the 98 S.C.744/2001.
Supreme Court, IPC and Cr.P.C. provisions and according to his contention that the identification parade of the accused not conducted by independent witnesses and the seizure mahazar panchas are not independent witnesses and the seizure is not proved beyond reasonable doubt. How the accused persons came in possession of the robbed materials are not proved beyond reasonable doubt. The evidence before the court is not reliable and by the evidence of Investigating Officer also and in accordance with the citations of the Supreme Court also the prosecution has failed to prove its case beyond reasonable doubt. It is burden on the prosecution to prove that the accused have committed the offence. Otherwise they are entitled for the benefit of doubt. The rulings relied upon by the prosecution are not helpful. In these circumstances of the case accused have not committed offence of murder of Gita and dacoity in the said house and there were no proper evidence before the Court.
96. In support of these citations the learned counsel for the accused has argued for the acquittal and on the other hand the Public Prosecutor has relied upon the rulings and also confession statement given by the accused. They have given statement stating 99 S.C.744/2001.
that accused No.5 entered the house of the deceased on the pretext of asking water and opened the said door and thereafter other four accused entered into the said house and murdered. Soon after the murder robbed the golden articles. These are the group of persons involved in the said robbery and murder and they had common intention and in that regard the offences against the accused are proved beyond reasonable doubt as per the evidence of P.W.10 the Investigating Officer. Accordingly they have committed offence punishable under Section 396 and 302 read with Section 34 of I.P.C. Hence the learned Special Public Prosecutor prays to consider the evidence of Prosecution.
97. On perusal of the evidence of the entire prosecution, there is no evidence of eye-witness in this case because it is very difficult to get the evidence of eye witness when the offence is committed within the four walls of the house and the assailants are more in number and the deceased victim Gita was alone in her house. That too, the said Gita was in the first floor of the house and there were no neighbouring houses except the house in front of the house of deceased Gita which in the ground floor. The time of offence and modus operandi of the accused is after 11.30 a.m. Usually, in all 100 S.C.744/2001.
localities of big cities and also in the small villages everyone will go to their respective works including elder male persons and also children to the school. In those circumstances, there will be possibilities of living a lone women in day time. The day time is also even though it is not dangerous, if any stranger enters the house with intention to commit offence, the innocent lady Smt.Gita has allowed such persons to enter the house and first lady is the accused No.5. Because she was women Gita allowed her to enter into the house. Therefore, getting the direct eye witness for the murder is highly impossible and it cannot be taken into consideration as eye witnesses were available in all circumstances. Suppose, murder took place on the public road, during day time, there might be possibilities of getting the one or two eye witnesses. Hence, the point of eye-witness even though it is much more important in this case, it can be brushed aside. The locality of Agrahara Dasarahalli though surrounded by the houses, none were available at that time. Hence, eye-witness account cannot be taken into consideration.
98. The circumstantial evidence is a person witness who enters the house suddenly at the time of murder of the said 101 S.C.744/2001.
deceased Gita. None of the outsider have not entered the said house including the friend of Smt.Gita or the neighbour or any other person asking for any sales or for the payment etc., to them which is out-standing. None of the circumstantial witnesses entered at that time and the time chosen by these accused at 11.30 a.m. and in between 3.30 p.m. during this period none are available in the house except women, old aged persons and maid servants if any. Therefore, there is no circumstantial evidence supporting to the case of prosecution and it cannot be secured during such time. Even in the middle of the town or in the extension areas.
99. Though all the confession statements recorded by the Investigating Officer, taking confession as they were committed offences and which is a weak type of evidence available before the court. The Investigating Officer is also a Gazetted Officer and there is onerous liability is upon him to record the statements and even confession statement, because he was answerable for all the consequences if the confessional statements goes wrong. On perusal of some of the confession statements in respect of these accused, the accused have entered the houses and the time chosen 102 S.C.744/2001.
by them is 11.30 a.m. to middle 3.30 p.m. and they are entering into the houses with the pretext of asking water and the said accused No.5 is chosing the houses and then she comes back and informs to other male accused and they will associate with her to commit heinous offences like murder and robbery. Likewise, they have committed murder in lone places where single, weak persons and old aged persons resides. The men accused in some cases have taken one of the lady to lonely place with the pretext of giving money and having sex with her. After completing the sex by the accused, they have murdered her. It is also further clear from the confession statements, wherever the food have been given from the houses and they have taken food etc., and the owners of such houses have been murdered. It is clear from the facts and records of the case that wherever the rice was given no person was spared without murder. Therefore, the offences are heinous in nature, because at the time of going out from the said house, they have robbed golden articles. The accused have committed heinous offences. Hence, for the reasons the I.O. found out that these accused are habitual offenders and hence recorded the confession statement and it has got evidentiary value and it cannot be thrown out straight away even though it is weak type of evidence.
103 S.C.744/2001.
100. On appreciation of the entire evidence on record as stated above, the I.O. has stated in the charge-sheet that the offence under Section 396 and 302 r.w.s. 34 of I.P.C., on perusal of evidence on record, there was a murder for robbing the golden articles i.e., one rope model Mangalya chain and one pair of ear studs, one white stone hangings and red stone hangings and another pair of ear studs, one golden mati soon after committing the murder, if the wrong person is left out there is a possibilities of evidence available against these accused. In order to deface the evidence completely, the accused have selected the modus operandi of timings and lone houses and soon after committing murder they will rob golden articles and they were leaving the houses. In big city like Bengalore, none will bother about incidents of neighbouring houses due to lack of friendship and lack of social awareness. Wherever there is no social awareness and lack of friendship between the neighbourhoods, it is the chance for the murderers to commit the offence and to escape immediately with golden articles etc., In such circumstances of social set-up, it is highly impossible to get the evidence of eye witnesses and also the circumstantial 104 S.C.744/2001.
evidences. Hence, it cannot be stated that the accused have not committed the murder as well as dacoity.
101. These accused were habitual offenders and they were involved in several murder and robbery cases and they are the history sheeters and the background of these accused reveal by the statistics of the case produced by the Inspector of Vijayanagar Police Station. It reveals that there are several dacoity and murder cases and they are not only a gang in Kamakshipalya, Banaswadi and areas of Vijayanagar, but they are also going to Mysore , Hubli and they have committed the similar nature of offences. Soon after the complaint while finding the accused, I.O. has selected these accused because in the complaint there is no need in the complaint who has murdered the Gita, but due to the habitualness of committing similar crimes, the I.O. has booked the case against these accused even though it is on suspicion or on the wrong assumption, but who has to say this is a case which is registered illegally against the accused. But the I.O. has suspected this group of accused as habitual offenders. Hence, there is no need to discard the evidences.
105 S.C.744/2001.
102. Hence, Court comes to the conclusion that it is just, proper, reasonable and equitable to consider both the offences even some lapses are found out in the evidence of the prosecution, that lapse will not come into effect as the murder and robbery are two faces of the same coin. If one offence is proved, another offence follows the same. Therefore, I have already stated in the above paragraphs that there is chance of interlink between the offences and the prosecution has also led the evidence in respect of use of knife in the said offence and the murder is committed through the knife only and it cannot be denied. Therefore, in view of the said chain of interlink between the said offence, the Court comes to the conclusion that there are no circumstantial evidence or eye witnesses to the case of the prosecution although in murder cases only blood relatives and nearest persons or neighbouring house owners have deposed before the court including the I.O. evidence and it is also not possible to get the evidence of eye witnesses within the four walls of the house when the murder took place and the lady Smt.Gita, wife of P.W.1 was alone in the house and the inmates of the house Jayaramaiah and children were also not available by that time. Children had gone to school and husband had gone to duty. Therefore, in extreme circumstances of nature, 106 S.C.744/2001.
the history sheets prevail. The police investigation has gone on the history of the similar offences committed by them.
103. Hence, with confession statements coupled with the part of the evidence of the blood relatives and panch witnesses and seizure mahazar is sufficient to convict the accused. Accordingly, I answer Point No.1 and 2 in the affirmative.
104. POINT NO.3:- In view of my findings on the above points, I proceed to pass the following:-
ORDER Accused No.1 to 5 are convicted under Section 235(2) of Cr.P.C. for the offences punishable under sections 302 and 396 r.w.s. 34 of I.P.C.
Hence, to hear regarding the sentence.
(Dictated to the Judgment Writer directly on computer, typed by him, revised by me and after corrections pronounced in open court on this the 9th day of November, 2017.) (SHIVANAGOUDA) XXXIV Addl. City Civil & Sessions Judge, (Special Judge) Central Prison Premises, Parappana Agrahara, Bengaluru.
107 S.C.744/2001.
ORDER ON SENTENCE
1. Accused No.1 has submitted that he has also got two daughters and one son who are yet to be married and there is none to look after his family and search suitable bride and groom for his children and he is in the jail since 15 years and further he has stated that all the children were residing in the hostel for studies and carrying their progression in the education. Hence, prayed to take lenience view and pass sentence accordingly.
2. Accused No.2 submitted that he is already in jail for about 15 years and further he has submitted that he has got grown up children and also young daughters who are yet to be married and if he is kept in judicial custody for imprisonment, the whole family of the accused No.2 will be spoiled. Hence, he prays to reduce the sentence if ordered by the court.
3. Accused No.3 submitted that he is no way connected to the case and he is innocent and he has stated that after coming over to the jail, by residing in the jail itself, by earning in the jail he has given all the expenses for the education of his children.
108 S.C.744/2001.
4. Accused No.4 has submitted that he is in the jail since from 18 years and the Kamakshipalya Police Station have foisted a false case against him. Hence he prays for acquittal of the entire sentence if imposed by the court.
5. Accused No.5 has submitted that she has got two daughters who are yet to be married and no body is there to look out the family and also search suitable groom for her daughters. She is hampered in the trial in the jail since fifteen years.
6. The learned Special Public Prosecutor has submitted his arguments. He argued that already the society has suffered a lot in several sessions cases. He argued that accused persons are involved in number of dacoity and murder cases. Accused No.1- Doddahanuma involved in 88 cases, accused No.2 - Venkatesh involved in 28 cases, accused No.3 - Munikrishna is involved 29 cases, accused No.4 - Nallatimma involved in 28 cases and accused No.5 - Lakshmamma involved in 17 cases. Further the learned Special Public Prosecutor argued that passing of death sentence is the only solution for the court. Further he has submitted that looking into the gravity and nature of offences, the Hon'ble 109 S.C.744/2001.
Supreme Court of India in all murder cases wherein there is heinousness has passed death sentence. He has submitted that the same death penalty which was given earlier is to be ordered otherwise there would be no proper justice to the victims. Hence prosecution prays the court to award death sentence to the accused No.1 to 5 for the offences punishable under Sections 302 and 396 r.w.s. 34 of I.P.C.
7. The learned counsel for the accused Sri.Nasir Ali representing Sri.Hasmath Pasha, has submitted a ruling reported in AIR 1983 Supreme Court 446 in between Eerabhadrappa V/s. State of Karnataka and AIR 1980 Supreme Court 898 in between Bachan Singh V/s. State of Punjab. In AIR 1983 Supreme Court 446, it is held that :-
Failure to impose a death sentence in such grave cases where it is a crime against the society - particularly in cases of murders committed with extreme brutality - will bring to naught the sentence of death provided by Sec.302 of the Penal Code. The test laid down in Bachan Singh's case (AIR 1980 SC
898) (supra), is unfortunately not fulfilled in the instant case. Left with no other 110 S.C.744/2001.
alternative, we are constrained to commute the sentence of death passed on the appellant into one for imprisonment for life.
8. In AIR 1980 Supreme Court 898 in between Bachan Singh V/s. State of Punjab the court also noted the "Aggravating circumstances" and "Mitigating circumstance" which ought to be considered for imposition of penalty of death in its discretion:-
AGGRAVATING CIRCUMSTANCES
a) If the murder has been committed after previous planning and involves extreme brutality; or
b) if the murder involves exceptional depravity; or
c) if the murder is or a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -
i) While such member or public servant was
on duty; or
ii) In consequence of anything done or
attempted to be done by such member or
public servant in the lawful discharge of his duty as such member of public servant 111 S.C.744/2001.
whether at the time of murder he was such member or public servant, as the case may be or had ceased to be such a member or public servant; or
d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Cr.P.C. 1973 or who had rendered assistance to a Magistrate or a Public Officer after demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.
MITIGATING CIRCUMSTANCES :-
1) That the offence was committed under the influence of extreme mental or emotional disturbance.
2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
4) The probability that the accused can be reformed and rehabilitated. The State shall by 112 S.C.744/2001.
evidence prove that the accused does not satisfy the conditions (3) and (4) above.
5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
6) That the accused acted under the duress or domination of another person.
7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
9. The learned counsel for the accused argued that Point No.3
- Mitigating circumstances and point No.4 Aggravating circumstance has to be proved by the prosecution beyond reasonable doubt and it is also further argued by the learned defense counsel that the prosecution has to prove that this case is rarest of rare case and the accused are entitled for the death sentence and not less than the death sentence. Further, only on the basis of citations and judgment, under what circumstances the court has to give weight to them and the court has to consider the same whether this case falls under the rarest of rare cases.
113 S.C.744/2001.
10. The court has perused the entire records and also heard arguments on the sentence of both sides.
11. All the accused persons were involved in several cases and offences as alleged against them in the charge-sheet and evidence led by the prosecution and documents marked and the M.Os' seized by the Investigating officer reveals that all the offences are heinous in nature and the accused were not only committed offence in Bengaluru but they have committed offences in Mangalore, Hubli and they have also submitted that they are aged persons except accused No.3. Looking to the nature and gravity of the offences etc., in all non-bailable offences it is a rule of law whenever the offence is proved the trial court has to give the maximum punishment and this court as a trial court has no power to reduce the sentence on its own because the common rule of practice is maximum imprisonment is life imprisonment and even the same cannot be reduced in this case because accused were involved in several cases and there was an outcome of result in other cases ended in conviction and the said conviction if it is taken into consideration, as a trial court, the power of trial court is very limited and restricted in its own and it cannot expand or 114 S.C.744/2001.
reduce the sentence as prayed by the accused little than life imprisonment as this court feels that and referred several supreme court rulings in order to assess the punishment which is required to be imposed on the accused and I have gone through the several citations on the subject of sentencing policy. After analyzing the law of the land, Supreme Court rulings can be referred including the Hon'ble High Court rulings and in that regard, I have gone through some of the citations which are useful for the sentencing. They are as follows :-
1) Gopal Vinayak Godse vs. The State of Maharashtra and others (1961) 3 SCR 440 (Constitution Bench)
2) Dalbir Singh and others V/s. State of Punjab (1979) 3 SCC 745
3) Maru Ram Vs. Union of India (1981) 1 SCC 107 (Constitution Bench):
4) Naib Singh Vs. State of Punjab (1983) 2 SCC 454
5) Ashok Kumar @ Golu V/s. Union of India (1991) 3 SCC 498
6) Laxman Naskar (Life Convict) Vs. State of W.B. (2000) 7 SCC 626;
7) Zahid Hussein Vs. State of West Bengal (2001) 3 SCC 750
8) Kamalanatha vs. State of Tamilnadu (2005) 5 SCC 194
115 S.C.744/2001.
9) Mohd. Munna vs. Union of India, (2005) 7 SCC 416 and
10) C.A. Pious Vs. State of Kerala (2007) 8 SCC 312
12. In Shraddananda case, our own Hon'ble High Court of Karnataka after the death sentence one of the accused has preferred appeal before the Division Bench and thereafter in the Division Bench, there was difference of opinion to convict the offender/accused to death sentence and another Judge came to conclusion only life imprisonment is sufficient and to clarify the said matter the same judgment of Shraddananda case was referred to the larger bench, wherein in the Division Bench, Hon'ble Supreme Court in AIR 2008 Supreme Court 3040 in between Swami Shraddananda @ Murali Manohar Mishra V/s. State of Karnataka held as follows :-
A) Penal Code (45 of 1860), S.302 - Murder -
Death Sentence - Rarest of rare case - Categories of murder cases enumerated in Machhi Singh, AIR 1983 SC 957 - Not inflexible, absolute or immutable.
B) Penal Code (45 of 1860), Ss. 302, 45, 57 -
Murder - Sentence - Case falling just short of 116 S.C.744/2001.
rarest of rare case- Court can sentence accused to imprisonment for rest of his life or term excepting 14 years - Remission granted by executive orders to life convicts has no legal basis.
C) Penal Code (45 of 1860) S.302- Murder -
Death Sentence - Accused committing murder of his wife in greed of money - Deceased administered a high dose of sleeping drugs - She was put alive in a wooden box - And buried in a pit dug outside bedroom- Murder was committed in a planned and cold blooded manner - But it could be said that deceased never knew that she was betrayed - Moreover, though killing was quite ghastly it did not cause any mental or physical pain to the victim - Accused had also confessed to his guilt - held, considering lack of uniformity in sentencing system and absolute irrevocability of death penalty, sentencing accused to death would not be proper - Death sentence substituted by life imprisonment in rest of life.
The said case is also based on the confession statement in Para No.11
- - - - - - - He voluntareered to take the Investigating Officer (IO) to the place and identify the exact spot where Shakereh lay buried inside the wooden box. The appellant made the 117 S.C.744/2001.
following statement before the IO on 28 March 1994.
"If I am taken I will show the place where the wooden box was prepared and the person who prepared it, the person who transported the box and the people who helped in digging out the pit and the crow bar, spade, pan used for digging pit, the cement bags and the spot where Shakereh is buried and I exhume the dead body of the deceased and show you. The statement what all I had earlier given to Ashok nagar police was a false statement given intentionally just to escape myself."
13. In this case also, the case of the accused is based on confession statement for the recovery of golden articles one rope model Mangalya chain and one pair of ear studs, one white stone hangings and red stone hangings and another pair of ear studs, one golden mati M.O.1 to M.O.5 and seizure of the golden articles is proved on the basis of confession statement of the accused from Ex.P.15 to Ex.P.19. Similar was the case before the Supreme Court, wherein the said accused Shraddananda taken the police and exhumed the body of lady Shakeera, who was having a love affair with her and in order to take entire property of said Shakeera, who was the grand daughter of Mirza Ismail, duped the entire property 118 S.C.744/2001.
by taking signature on the documents and the said lady was also having intimacy with the said accused Shraddananda. Therefore, Shraddananda's confession statement was recorded in that case. On the basis of the said confession statement death sentence has been given and in the said death sentence given by the Hon'ble High Court of Karnataka has been challenged before the Hon'ble Supreme Court of India wherein the Division bench has held a judgment properly in AIR 2008 Supreme Court 3040, which is applicable for the facts of the present case. In view of the similarity of the case law on hand as stated above is the law of land and it can be relied upon for the purpose of this case and the court can order and pass the suitable judgment in that regard. Hence, the court comes to the conclusion that on the ground of parity and similar order of conviction has been passed by the Hon'ble Supreme Court can be taken as a precedent because the Hon'ble Supreme Court in the said ruling discussed several citations of the same Court. Therefore, while referring the case law of Shraddananda as stated above, in paragraph 68 of the said judgment it has been stated as follows :-
In light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute
119 S.C.744/2001.
a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of the life or for the actual term as specified in the order, as the case may be.
14. The accused are entitled for life imprisonment. The rulings as relied upon by the learned counsel for the accused at the time of argument are not applicable to the facts of the case. That the accused are not entitled for the set-off under Section 428 of Cr.P.C. The Court comes to the conclusion to award the sentence as follows :-
SENTENCE Acting under Section 235(2) of Cr.P.C., accused No.1-Doddahanuma S/o. Venkatappa U.T.P.No.10176, accused No.2 - Venkatesh @ Chandra U.T.P. No.10175, accused No.3 - Munikrishna @ Krishna U.T.P. No.10178, accused No.4 - Nallatimma U.T.P. No.10177 and accused No.5 - Lakshmamma U.T.P. No.10179 are hereby convicted for life imprisonment for the offences punishable under Section 396 r.w.s. 34 and also under Section 302 r.w.s. 34 of Indian Penal Code.
120 S.C.744/2001.
Punishment for both the offences shall run concurrently.
Imprisonment for life means, even after giving set-off under Section 428 of Cr.P.C. the accused shall undergo imprisonment for the rest of their whole life for both the offences concurrently.
It is further ordered that each accused i.e., accused No.1 to accused No.5 shall pay fine of Rs.5,000/- to P.W.1.
Further, the office is directed to send the warrant of sentence to the Superintendent, Central Prison, Parappana Agrahara, Bengaluru.
As per Rule 7(3) of Criminal Rules of Practice 1968, office is directed to supply copy of judgment freely and immediately and get signature with date of accused in order sheet.
M.O.1 to M.O.5 is ordered to be returned to P.W.1 on proper identification by the police concerned Kamakshipalya police station, Bengaluru after completion of appeal period.
121 S.C.744/2001.
M.O.6 to M.O.17 being worthless are ordered to be destroyed after the appeal period is over. (Dictated to the Judgment Writer directly on computer, typed by him, revised by me and after corrections pronounced in the open Court, on this the 9th day of November, 2017.) (SHIVANAGOUDA) XXXIV Addl. City Civil & Sessions Judge, Special Court, Central Prison Premises, Parappana Agrahara, Bengaluru.
ANNEXURE
1. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION :-
P.W.1 :- Jayaram C.W.1 23/08/2004
P.W.2 :- D.Shivaraj C.W.2 23/08/2004
P.W.3 :- Puttaraju C.W.9 06/11/2004
P.W.4 :- D.Janardhanshetty C.W.14 29/11/2004
P.W.5 :- Channaiah C.W.16 21/02/2005
P.W.6 :- R.Kodandaramaiah C.W.4 09/03/2005
P.W.7 :- Girish C.W.5 08/06/2005
P.W.8 :- Nagamma C.W.6 08/06/2005
P.W.9 :- C.S.Shivakumaraiah C.W.8 08/06/2005
P.W.10 :- S.Babu C.W.11 09/06/2005
P.W.11 :- Chikkavenkataswamy C.W.18 11/11/2005
P.W.12 :- K.H.Manjunath 18/11/2009
P.W.13 :- Lakshmanashetty C.W.15 01/12/2009
P.W.14 :- K.Sheshadri C.W.34 22/12/2009
P.W.15 :- N.Chalapathi C.W.17 22/06/2010
122 S.C.744/2001.
2. EXHIBITS MARKED ON BEHALF OF PROSECUTION :-
Ex.P.1 :- Complain
Ex.P.1(a) :- Signature of P.W.1
Ex.P.2 :- Spot mahazar
Ex.P.2(a) :- Signature of P.W.1
Ex.P.2(b) :- Signature of P.W.6
Ex.P.3 :- Inquest Mahazar
Ex.P.3(a) :- Signature of P.W.2
Ex.P.3(b) :- Signature of P.W.6
Ex.P.4 :- Mahazar
Ex.P.4(a) :- Signature of P.W.2
Ex.P.5 :- Spot mahazar
Ex.P.5(a) :- Signature of P.W.3
Ex.P.6 :- Certified Xerox copy of mahazar
Ex.P.6(b) :- Signature of P.W.5
Ex.P.7 :- Certified Xerox copy of mahazar
Ex.P.7(b) :- Signature of P.W.5
Ex.P.8 :- Certified Xerox copy of mahazar
Ex.P.8(a) :- Signature of P.W.4
Ex.P.8(b) :- Signature of P.W.5
Ex.P.9 :- Mahazar
Ex.P.9(a) :- Signature of P.W.5
Ex.P.10 :- Report
Ex.P.11 :- Seizure mahazar
Ex.P.11(a) :- Signature of P.W.10
Ex.P.12 :- Mahazar
Ex.P.12(a) :- Signature of P.W.10
Ex.P.13 :- Post Mortem report
Ex.P.14 :- F.I.R.
Ex.P.15 :- Confession statement of accused Doddahanuma
Ex.P.16 :- Confession statement of accused Venkatesh
Ex.P.17 :- Confession statement of accused Munikrishna
Ex.P.18 :- Confession statement of accused Nallitamma
Ex.P.19 :- Confession statement of accused Lakshmi
Ex.P.20 :- D.V.D. (Confession statements of the accused)
Ex.P.21 :- D.V.D. (Udaya T.V. Sutta Mutta)
Ex.P.22 :- C.D.
Ex.P.23 :- D.V.D.
Ex.P.24 :- Statistics.
123 S.C.744/2001.
3. LIST OF WITNESSES EXAMINED ON BEHALF OF ACCUSED :-
NIL
4. LIST OF EXHIBITS MARKED ON BEHALF OF ACCUSED :-
Ex.D.1 :- Portion of Inquest Mahazar
5. MATERIAL OBJECTS :-
M.O.1 :- Rope model gold mangalya chain (not there) M.O.2 :- One pair of gold mati with ear studs having red stone M.O.3 :- One pair of gold mati with ear studs having white stone M.O.4 :- One pair gold mati M.O.5 :- One pair gold mati with red stones M.O.6 :- Blood stain on full sleeves blue shirt M.O.7 :- One plastic box containing blood stain M.O.8 :- Two combs having blood stain M.O.9 :- Shirt button having blood stain M.O.10 :- Rose colour kerchief having blood stain M.O.11 :- White saree with green border having blood stain M.O.12 :- Green colour blouse with blood stain M.O.13 :- Three broken yellow coloured buttons M.O.14 :- blood stain on Ash colour shirt M.O.15 :- Blood stain on brown colour T-shirt M.O.16 :- One black colour nighty with red flower design M.O.17 :- One blue colour petticoat (SHIVANAGOUDA) XXXIV Addl. City Civil & Sessions Judge, (Special Court), Central Prison Premises, Parappana Agrahara, Bengaluru.