Karnataka High Court
L Manjunatha vs State Of Karnataka on 20 November, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 20TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.193 OF 2012
BETWEEN:
1. L MANJUNATHA
S/O LATE M LAKSHMAN
AGED ABOUT 30 YEARS
R/AT NO.27, 2ND CROSS,
OLD BYAPPANAHALLI,
BENGALURU.
2. SMT CHINTAMBARAMMA
W/O LATE M LAKSHMAN
AGED ABOUT 48 YEARS
R/AT NO.27, 2ND CROSS,
OLD BYAPPANAHALI
BENGALURU.
3. KUM SARASWATHI
D/O LATE M LAKSHMAN
AGED 24 YEARS
R/AT NO.27, 2ND CROSS,
OLD BYAPPANAHALI
BENGALURU. ... APPELLANTS
2
(By Sri: HASHMATH PASHA, ADVOCATE)
AND
STATE OF KARNATAKA
BY BYAPPANAHALLI POLICE STATION
BENGALURU CITY.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR) ... RESPONDENT
(By Sri: VIJAYAKUMAR S. MAJAGE,
ADDITIONAL SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED:24.1.12 PASSED BY THE PRESIDING OFFICER,
FAST TRACK COURT-IX, BENGALURU IN S.C.NO.600 OF
10 - CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 120-B AND 302
R/W 34 OF IPC. AND THE APPELLANTS/ACCUSED SHALL
UNDERGO IMPRISONMENT FOR LIFE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH 120-B IPC.
THESE ACCUSED ARE ALSO LIABLE TO PAY A FINE OF
RS.10,000/- (RS. TEN THOUSAND) ONLY AND IN DEFAULT
SHALL UNDERGO RIGOROUS IMPRISONMENT FOR A
PERIOD OF TWO (2) YEARS FOR THE SAID OFFENCE.
*****
THIS CRIMINAL APPEAL IS COMING ON FOR
HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED
THE FOLLOWING:
3
JUDGMENT
This appeal is directed against the judgment dated 24.01.2012 passed by the Presiding Officer, Fast Track Court-IX, Bengaluru in S.C.No.600 of 2010. By the impugned judgment, the trial court has convicted the appellants (hereinafter referred to as 'accused Nos.1 to 3') for the offences punishable under sections 302 r/w 120-B Indian Penal Code and has sentenced them to undergo imprisonment for life and to pay a fine of Rs.10,000/- each, in default to undergo rigorous imprisonment for a period of two years each for the said offence.
2. The facts leading to the appeal are as follows:-
The deceased Sahitya married accused No.1 on 10.03.2006. After the marriage, she started residing alongwith accused Nos.1 to 3, 6 and 7 at No.27, II Cross, Old Baiyappanahalli, Bengaluru. It is alleged that at the time of the marriage, a cash of Rs.4.00 lakhs and gold 4 jewellery weighing 100 gms was paid as dowry to accused No.1. In the wedlock, the deceased gave birth to a male child. According to the prosecution, during the subsistence of the marriage, accused No.1 developed illicit relationship with accused No.8. In order to continue his illicit relationship, accused No.1 began to ill-treat and harass the deceased demanding more dowry. It is further alleged that when the deceased returned from her parents' house, she used to bring with her ensorcelled or charmed lemon. The accused were of the impression that the deceased was given to practice sorcery on them and hence, they hatched a conspiracy to do away with the life of the deceased. In furtherance of this conspiracy, accused Nos.4 and 5 were given supari and accordingly on 24.08.2009, at about 4.30 p.m., accused Nos.4 and 5 came to the house of accused No.1, pressed the neck of the deceased and committed her murder.
3. Initially, the case was registered as unnatural death under Section 174 Cr.P.C. However, during enquiry, 5 the mother of the deceased having given a statement before the Tahasildhar alleging dowry demand and cruelty, the said statement was forwarded to PW-24, the Police Inspector of Baiyappanahalli Police Station. Based on this statement, PW-24 registered Cr.No.252 of 2009 against accused Nos.1 to 3 and 6 to 8 under sections 498-A, 304- B, 302 r/w 34 Indian Penal Code.
4. The investigation was continued by PW-18. In the course of the investigation, he arrested accused Nos.1 to 3. Based on the voluntary disclosure of accused No.1, he recovered cash and gold ornaments said to have been received by the accused by way of dowry at the time of the marriage. He recorded the further statement of PW-19- Ramesh and his wife PW-20- Smt.Saroja and laid the charge sheet against eight accused persons under sections 498-A, 302 r/w 34 and section 120-B of Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. Accused 6 Nos.4 and 5 were shown as absconding and the case against them was split up.
5. Accused Nos.1 to 3 and 6 to 8 faced trial. In order to substantiate the accusations, the prosecution examined in all 24 witnesses and produced in evidence 23 documents marked as Exs-P1 to P23 and the material objects at M.Os 1 to 11. The parents and the immediate relatives of the deceased having failed to support the prosecution with regard to the alleged demand and satisfaction of dowry and having regard to the fact that accused No.6 and 7 were not residing alongwith accused Nos.1 to 3 and the deceased at the relevant point of time, the trial court acquitted accused Nos.6, 7 and 8 of all the charges and convicted only accused Nos.1 to 3 for the offence under section 302 r/w 120-B Indian Penal Code and sentenced them as above.
6. Feeling aggrieved by the impugned judgment of conviction and sentence, respective accused Nos.1 to 3 have preferred the above appeal.
7
7. We have heard the learned counsel appearing for the appellants/accused Nos.1 to 3 and the learned Addl. SPP and have examined the records.
8. Sri. Hashmath Pasha, learned counsel appearing for the appellants/accused Nos.1 to 3 contends that the impugned conviction is wholly illegal, perverse and unsustainable in law. There is no material whatsoever to sustain the charge under Section 302 Indian Penal Code, much less, under Section 120-B Indian Penal Code. The trial court having exonerated accused Nos.6, 7 and 8 of the charge under Section 120-B, the said charge cannot be sustained against the co-accused. In support of this submission, the learned counsel has placed reliance in the case of LEO ROY FREY vs. SUPERINTENDENT, DISTRICT JAIL, AMRITSAR AND ANOTHER reported in AIR 1958 SC
119. With regard to the conviction of the appellants for the offence under Section 302 Indian Penal Code is concerned, the learned counsel would contend that 8 accused No.1 was not present in the house either on the date of the incident or at the time of commission of the alleged offence. According to the prosecution, the murder was committed between 4.00 - 5.00 p.m. If the evidence of PW-19 and PW-20 is accepted, it goes to show that none of the accused Nos.1 to 3 were present in the house at the relevant time. Therefore, exclusive knowledge under Section 106 of the Evidence Act cannot be imputed to accused Nos. 1 to 3. Further, referring to the evidence of PW-20, he contends that whatever knowledge that was available to accused Nos.2 and 3 was also available to PW- 20, therefore, the Trial Court has erred in applying Section 106 of the Evidence Act to the facts of the present case. Hence, he pleads for setting-aside the impugned judgment of conviction and sentence.
9. The learned Addl. SPP has argued in support of the impugned judgment. He submits that the incident has taken place within the four walls of the matrimonial home. It is proved in evidence that at the time of commission of 9 the offence, accused Nos.2 and 3 were in the house. The defence set up by accused Nos. 2 and 3 is highly improbable. It cannot be believed that when two intruders came into the house, as contended by accused Nos.2 and 3, they would conveniently go out of the house and stay in tenants' house. He pointed out that even PW-20 has stated in her evidence that it was unusual on the part of accused Nos.2 and 3 to stay in her house, which indicates that the theory put forward by accused nos.2 and 3 that they were in the house of PW-20 for about two hours is an after- thought and fabricated only to bail out the accused of the serious charges. The circumstances brought out in the evidence clearly indicate that accused Nos.1 to 3 were very much present in the house and therefore they owed an explanation as to the unnatural death of the deceased which admittedly has taken place within seven years from the date of the marriage. Hence the Trial Court was justified in drawing the presumption under Section 113-B of the Evidence Act and convicting the appellants/accused 10 Nos.1 to 3 for the said offences. Hence, he seeks for dismissal of the appeal.
10. In the light of the contentions urged by the parties, the only point that requires to be considered is "whether the conviction of the appellants/accused No.1 to 3 is sustainable on the facts and circumstances of the case"?
11. There is no dispute regarding the fact that the deceased and accused No.1 were married on 10.03.2006. It is also not in dispute that after the marriage, the deceased was living with accused Nos.1 to 3. Though the prosecution has proceeded on the basis that accused Nos.6 and 7 were also residing in the matrimonial home alongwith deceased, but in view of the finding recorded by the trial court, which is not challenged by the prosecution, it stands established that accused Nos.6 and 7 were not residing in the matrimonial home at the relevant point of time.
11
12. Insofar as charge under Section 498-A Indian Penal Code is concerned, the immediate relatives viz., the mother of the deceased and her relatives viz., PW-1, PW- 2, PW-3 and PW-4 have failed to support the prosecution case and did not utter anything about the alleged demand of dowry or cruelty to the deceased in the matrimonial house. Therefore, the trial court was justified in acquitting the accused of this charge.
13. Coming to the charge under Section 302 of Indian Penal Code is concerned, in proof of this charge, the prosecution has relied on the evidence of PW-19 and PW-
20. PW-19 and PW-20 were the tenants of accused Nos.1 to 3. It is not in dispute that they were residing on the ground floor, whereas, the deceased and the accused Nos.1 to 3 were residing on the upstairs of the same building. According to PW-19, on 24.9.2009, at 8.30 p.m., accused Nos.2 and 3 came to their house and informed him that deceased Sahitya was sleeping and she was not 12 waking up. Immediately, PW-19 and PW-20 went upstairs and found the deceased sleeping. They tried to wake her up. There were blood clots all around her mouth. Accused No.3 sprinkled some water on her face. Immediately, PW- 19 brought one Dr. Bhakthavatsala (PW-22) to the house. He examined her and informed them that the deceased had died about three hours earlier. They called for an ambulance. By then, accused No.1-husband of the deceased reached there. PW-19 and accused No.1 carried her to Chinmaya Hospital, but the Doctor declared her to have brought dead. Thereafter, PW-19 proceeded to Baiyappanahalli police station and lodged the complaint as per Ex.P1.
14. PW-20 is the wife of PW-19. According to her, on the date of the incident, at about 3.00 p.m., when she had gone to the house of the deceased, she saw that a "pooja" was going on in the house. The people gathered there were talking in Telugu. She was sent back. After about two hours, the persons who were performing the 13 pooja got down the stairs and went away. She further deposed that Accused No.2 came to their house in the evening and informed them that the deceased was not waking up and therefore, they went upstairs and found the deceased dead. In her chief examination, she has further stated that on that day, at 3.00 p.m., when she had gone to the house of the deceased, she found the deceased putting the clothes for drying. At about 8.30 p.m., when she saw the deceased, there was blood on her face, neck and stomach. She has further deposed that on the date of the incident, between 4.00 p.m. to 6.00 p.m., accused Nos.2 and 3 were in her house. She has further added that, generally, they never used to come to her house.
15. Based on the evidence of the PW.19 and PW.20, the trial court has held that pursuant to a conspiracy, accused Nos.4 and 5 had come to the house of the deceased and committed her murder. This conclusion, in our view, in contrary to the evidence of PW-19 and PW- 14
20. On critically analyzing the evidence of PW-19 and PW-20 and on scrutiny of the entire material on record, we do not find even a speck of evidence in proof of the conspiracy alleged by the prosecution. As already extracted above, neither PW-20 nor PW-19 have stated anything about the conspiracy. On the other hand, their evidence indicates that they were not knowing accused Nos.4 and 5 either by name or by any other details. Even in his complaint, PW-19 did not even remotely refer to the presence of accused Nos.4 and 5 in the house. Undeniably, except PW-19 and PW-20, no other witnesses are examined by the prosecution in support of the theory of conspiracy or the presence of accused Nos. 4 and 5 at the spot. Therefore there was absolutely no basis for the Trial Court to come to the conclusion that pursuant to the conspiracy accused Nos. 4 and 5 committed the murder of the deceased.
16. What emerges from the evidence of PW-20 is that on the date of the incident at about 3.00 p.m., she 15 had gone to the house of the deceased. If this evidence is believed, it goes to show that at 3.00 p.m., accused Nos.2 and 3 were very much present in the house. At that time, the deceased was hale and healthy. According to PW-20, at that time pooja was going on in the house and she inquired accused No.2 as to why they were performing pooja; for which accused No.2 did not give any satisfactory answer. But the further evidence of PW-20 goes to show that during the performance of pooja, accused Nos.2 and 3 came to her house. This evidence looks highly unnatural and intriguing. It cannot be believed that accused Nos. 2 and 3 would come to the house of PW-20 when pooja was going on in their house. Be that as it may, PW-20 herself has stated in her evidence, that normally, accused Nos.2 and 3 were never used to come to her house and it is for the 1st time on the date of the incident, accused Nos.2 and 3 had come to her house. The conduct of accused Nos.2 and 3 going to the house of PW-20 and staying there for two hours has remained a mystery. According to PW.20, 16 accused Nos.2 and 3 returned to their house at about 6.00 p.m. Further, her evidence suggests that two strangers who had come to the house of the accused had gone away at about 5.00 p.m. Thereafter, at about 8.30 p.m., accused Nos.2 and 3 are stated to have called PW-19 her husband stating that the deceased was not waking up. PW- 19 has deposed that he brought PW-22 Dr. Bhakthavatsala who told them that the death might have taken place about three hours earlier to his examination. If this timing is accepted, the death might have taken place only after 5.00 p.m. or 6.00 p.m. that is, after accused No.2 and 3 returned to their house. Thus, from the evidence of PW-19 and PW-20, it could be safely inferred that when the deceased met with her death, only accused Nos.2 and 3 were in the house. Therefore, the theory put forward by the prosecution that accused Nos.4 and 5 murdered the deceased when accused Nos.2 and 3 were not in the house, appears to be highly improbable and unbelievable. 17
17. The above conclusion gets further support from the fact that at the earliest instance, when PW.19 lodged the complaint, he did not even remotely refer to the arrival of the strangers namely accused Nos.4 and 5 to the house of the deceased as sought to be projected by the prosecution. If infact the murder was committed by accused Nos.4 and 5 who came to the house on the guise of performing the pooja between 3.00 p.m. and 5.00 p.m., in all probability, when accused Nos.2 and 3 returned to their house at 6.00 p.m., on seeing the deceased, would have raised alarm and would have informed this fact to PW.19. In that event, PW.19 while lodging the complaint would have narrated the involvement of accused Nos.4 and 5, and the investigation would have been proceeded in that direction. But the complaint is conspicuously silent on this aspect. On the other hand, the facts proved in evidence indicate that only at 10.30 p.m., accused Nos.2 and 3 informed PW.19 and PW.20 that the deceased was sleeping and not waking up. Undisputedly, the deceased 18 had sustained several scratch marks on her face which were visible to the naked eye. PW.19 and PW.20 who saw the deceased at 8.30 p.m., have unequivocally stated that when they rushed to the house of the accused, they noticed blood clots on the face of the deceased. PW.21 - the Medical Officer who conducted the p.m. examination has enumerated as many as 13 injuries on the face and neck of the deceased and has opined that all the said injuries were ante-mortem, the abrasions were red in colour and contusions were also red in colour. Therefore, these injuries could not have escaped the notice of accused Nos.2 and 3. Therefore, the conduct of accused Nos.2 and 3 pretending that the deceased was sleeping and they found her not waking up at 8.30 p.m. throws serious doubt on their conduct.
18. The subsequent conduct of accused Nos.2 and 3 also belies the theory of the murder having been committed by any outsider or by accused Nos.4 and 5 as sought to be made out by the prosecution. If the 19 deceased was murdered by two persons who had come to perform the pooja as contended, certainly their names and whereabouts would have been known to accused Nos.2 and 3. It has come in the evidence of PW.20 that when she went to the house of accused Nos.2 and 3 in the evening, she found accused Nos.2 and 3 were also participating in the pooja. Under the said circumstances, if the deceased was done to death by those persons, in all probability accused Nos.2 and 3 would have informed this matter to PW.20 and she inturn would have narrated these events to the police soon after they came to know the death of the deceased. But curiously the complaint came to be lodged by PW.19 -a tenant residing in the same building. A bare reading of this complaint -Ex.P18 indicate that it was lodged at the behest of accused Nos.2 and 3. Undeniably the said complaint does not mention the presence of accused Nos.4 and 5 in the house at the time of commission of the offence. On the other hand, the evidence on record clearly establishes that only accused 20 Nos.2 and 3 were present in the house at the relevant time. Therefore, it goes without saying that the burden of proving the fact which was especially within the knowledge of accused Nos.2 and 3 was upon them. But accused Nos.2 and 3 have failed to offer any explanation to steer clear of the positive evidence staring at their face. Therefore, on consideration of all the facts and circumstances discussed above, we have no hesitation to hold that the evidence on record unerringly point to the guilt of accused Nos.2 and 3 for the death of the deceased.
19. We are consicious of the fact that the conclusion arrived at by us holding only accused Nos.2 and 3 guilty of the above offence is substantially at variance with the case set up by the prosecution. As already stated above, the specific case of the prosecution is that the actual murder was committed by accused Nos.4 and 5 pursuant to the criminal conspiracy entered into by all the accused. As a matter of fact, an argument is also advanced by the learned counsel for the accused 21 contending that when the evidence adduced by the prosecution is contrary to its own case, the benefit thereof has to be given to the accused. As a principle, it cannot be disputed that failure of the prosecution to prove the case set up by it, may entail acquittal of the accused, but in the instant case, on careful examination of the entire material on record, we are of the considered opinion that right from the inception a deliberate attempt has been made to introduce a false story by distorting the true facts. On considering the material on record, we find that the theory of criminal conspiracy and the involvement of accused Nos.4 and 5 is engineered in connivance with the Investigating Officer only to bail out the real offenders namely accused Nos.2 and 3. On careful consideration of the facts and circumstances brought out in the evidence, we are of the view that the story as projected by the prosecution has taken shape three days after the incident by making use of one of the tenants namely PW.20. This is evident from the fact that initially, the case was 22 registered as unnatural death. PW-24 the Police Inspector of Baiyappanahalli Police Station has stated that on 24.08.2009, he received a death memo from CMH Hospital, based on which, he registered UDR No.35 of 2009. According to him, since the death had taken place within seven years of the marriage of the deceased, he informed the matter to the Tahasildhar. Further, he has deposed that during inquest mahazar, the mother of the deceased gave her statement alleging dowry demand and cruelty and based on the said statement, Crime No.252 of 2009 was registered under Sections 498-A, 304-B, 302 r/w 34 Indian Penal Code. A copy of the FIR Ex-P21 indicates that there were no allegations whatsoever of conspiracy or the involvement of accused Nos.4 and 5. Further, PW-24 has stated that pursuant to the directions of ACP viz., PW- 18, he arrested accused Nos.1 to 3. Thus from the evidence of PW-24, it is clear that, he did not conduct any investigation in the case, except registering the case and apprehending accused Nos.1 to 3 on 27.08.2009. The 23 records reveals that he handed over the case papers to PW-18 on 26.08.2009. Undisputedly, until he handed over the case file to PW-18, there were no allegations whatsoever attracting criminal conspiracy or the involvement of accused Nos.4 and 5 in the alleged offence.
20. On going through the evidence of PW-18, the ACP of Ulsoor Circle, it is seen that he took over the investigation on 26.08.2009. It is relevant to note that according to this witness, on the same day, he visited the spot, prepared the spot mahazar as per Ex-P2, drew the sketch as per Ex-P13, issued direction to arrest the accused. On 27.08.2009, accused Nos.1 to 3 were produced before him. He recorded the voluntary statement of accused No.1. Pursuant to the voluntary statement, he recovered the cash and gold ornaments from his house as per Ex-P11. On the same day, he recorded the further statement of PW-20. On 31.8.2009, he collected the post-mortem examination and the clothes of the deceased and submitted the charge sheet on 24 31.08.2009 showing accused Nos.4 and 5 and 7 as absconding.
21. The above evidence indicates that PW-18 did not conduct any investigation with regard to the role of accused Nos.4 and 5 either with reference to the criminal conspiracy or with regard to the commission of the offence by them pursuant to the conspiracy. From the evidence of PW-18, it becomes crystal clear that during the investigation no evidence was collected by him against accused Nos.4 and 5. Even the whereabouts of accused Nos.4 and 5 were not ascertained. On the other hand, accused Nos.4 and 5 were shown as absconding and even during trial, the trial court could not secure them inspite of issuing warrants and direction to the investigating agency to produce them. Therefore, the learned Addl. SPP was asked to explain as to the basis on which accused Nos.4 and 5 came to be arrayed as co-accused without ascertaining their whereabouts and without collecting any evidence in proof of their involvement in the alleged 25 offence. In reply, the learned Addl. SPP would submit that after PW-18 took over the investigation, he recorded the statement of PW-20 and based on the said statement, the accused Nos.4 and 5 came to be arrayed as co-accused. We really fail to understand as to how PW-20 could name accused Nos.4 and 5 when the specific evidence of PW-20 is that she only saw two strangers performing the pooja in the house of the deceased on the date of the incident. Undeniably, she was not aware of their names or their whereabouts. Therefore, PW-20 could not have disclosed the names of accused Nos.4 and 5. Even though PW-20 deposed in her evidence that two strangers were seen in the house of the deceased performing pooja on the date of the incident, when this evidence was put to accused Nos.2 and 3 in their examination under section 313 Cr.P.C, interestingly, accused Nos.1 and 2 flatly denied the presence of such persons in their house on the date of the incident. The relevant question put to accused Nos.1 to 3 in this regard reads as follows:-
26
"PW-20- Saroja has stated in her evidence that about 2 years back, two persons came to the house of Sahitya and committed her murder and at about 3 p.m, when she visited the house of Sahitya, the persons who were present in the house sent her out and they were talking in Telugu and after 2 hours, those two persons went away from the house of Sahitya. What do you say? Answer: "False".
22. From the above evidence, it is clear that even accused Nos.2 and 3 did not disclose the name of accused Nos.4 and 5 to the Investigating Officer. Therefore, there was absolutely no basis for PW-18 to array them as co- accused in the case. From the material collected by PW-18 it can be gathered that PW.18 did not conduct any investigation in terms of the statement said to have been made by PW-20. All these circumstances therefore make it abundantly clear that accused Nos.4 and 5 came to be implicated only at the time of filing the charge-sheet 27 without collecting any evidence in proof of their complicity in the alleged offence. Even the address of these accused persons appear to have been inserted only during the trial. All these circumstances therefore, go to show that to bail out accused Nos.2 and 3, the Investigating Officer has deliberately introduced a theory of criminal conspiracy and supari given to PW.4 and PW.5. Therefore, this story having been introduced with the motive of screening accused Nos.2 and 3, in our view, the appellants cannot take advantage of the false story introduced by the Investigating Officer.
23. When the material on record point out that Investigating Agency has played a dubious role in introducing a false and concocted story with a view to shield the real offenders, the accused who are guilty of the said offence cannot take advantage of the mischief committed by the Investigating Agency. In this context, useful reference could be made to the observation made by the Hon'ble Supreme Court in the case of RAM BIHARI 28 YADAV vs. STATE OF BIHAR AND OTHERS, reported in AIR 1998 SC 1850, wherein at para - 13, it is held as under:
"13.....
Before parting with this case we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by bringing on record Exh. 5/4 and GD Entry 517 and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant."29
24. Further in the case of C.MUNIAPPAN AND OTHERS VS. STATE OF TAMIL NADU, reported in 2010 (9) SCC 567, the Hon'ble Supreme Court has reiterated that, "55....
The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The 30 conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
25. In the instant case, having considered the entire material extensively and on going through the charge-sheet and the evidence of the Investigating Officer (PW.18) and the evidence of the material witnesses examined before the court, we are of the view that the Investigating Officer - PW-18 has played a dubious role in presenting a false charge-sheet before the court introducing the theory of criminal conspiracy and by implicating accused Nos.4 and 5 in the offence that was committed only by accused Nos.2 and 3. Undoubtedly, his act is calculated to help and save the real offenders namely accused Nos.2 and 3. He has deliberately, botched the investigation and instituted false charges, knowing that there is no just or lawful grounds to proceed against accused Nos.4 and 5. The records also indicate that the Investigating Officer deliberately framed incorrect records 31 with an intention to save the real offenders and even attempted to prove the evidence as true and genuine, knowing it to be false and fabricated, thereby attracting offence punishable under Sections-196, 211, 218 of IPC. Therefore, we are of the view that it is necessary to direct appropriate action against the investigating officer for his deliberate acts of commission and omission, which amount to criminal misconduct, as well as serious offences under the Indian Penal Code. However, as we have not heard PW-18, the Investigating Officer in person, in order to sub- serve the principles of natural justice, we deem it necessary to direct an enquiry against PW.18. We are informed that PW.18 - the Investigating Officer is now retired. Even then the Service Rules provides for initiating departmental enquiry, as well as for launching the criminal prosecution for the acts done in discharge of the official duties. It is for the competent authority to proceed against the accused in the light of the observations and the findings made by this Court in this judgment. 32
26. Having considered the overall circumstances and the evidence provided by the prosecution, we are of the firm opinion that the prosecution has proved its case beyond reasonable doubt in so far as the guilt of accused Nos.2 and 3 is concerned for the offence punishable under Section-302 of Indian Penal Code. It is proved beyond reasonable doubt that on the date of the incident only accused Nos.2 and 3 were in the house and the deceased. The evidence and circumstances brought out in the evidence of PW-20 and PW19 coupled with the medical evidence discussed above establish beyond reasonable doubt that the deceased was done to death by accused Nos.2 and 3. Hence they are liable to be convicted for the said offence. However, as the prosecution has failed to establish the presence of accused No.1 during the occurrence, accused No.1 is liable to be acquitted of the charges.
Accordingly, we pass the following order: 33
ORDER i. Criminal Appeal No.193 of 2012 filed by the appellants / accused Nos. 1 to 3 is allowed in part.
ii. The conviction and sentence of the appellant No.1 / accused No.1 namely, Sri.L.Manjunatha, for the offence punishable under Section - 302, read with Section
- 120B of IPC is set-aside.
iii. The conviction and sentence of the appellant nos.2 and 3 / accused Nos.2 and 3 under Section-302, read with Section-120B of IPC is altered to Section-302, read with Section-34 of IPC. They are sentenced to imprisonment for life and a fine of Rs.10,000/- each (Rupees Ten Thousand Only). In default to pay the fine, accused nos.2 and 3 each, shall undergo further imprisonment for a period of two years for the said offence.34
iv. The appellant nos.2 and 3 / accused Nos.2 and 3 are acquitted of the charges under Section-120B of IPC.
v. The bail bonds of appellant nos.2 and 3 / accused Nos.2 and 3 shall stand cancelled. Their sureties are discharged. They are directed to serve the sentence as ordered.
vi. Appellant Nos.2 and 3 / accused Nos.2 and 3 are entitled for set-off for the period of custody already undergone by them, as contemplated under Section - 428 of Cr.P.C.
vii. Appellant No.1/ Accused No.1 namely, Sri.L.Manjunatha is ordered to be set at large forthwith, in this case, if not required in any other case.
viii. The Registry is directed to intimate the operative portion of this order to the concerned Jail 35 Authority for release of Accused No.1 namely, Sri.L.Manjunatha, and to the court below to take the custody of accused nos.2 and 3 for serving the remaining sentence.
ix. The Chief Secretary, Home Department, Government of Karnataka, Vidhana Soudha, shall initiate enquiry against PW-18, Investigating Officer for appropriate action in terms of this order and report the action taken to this Court within three months from the date of receipt of this order. A copy of this order to be forwarded to the Chief Secretary, Home Department, Government of Karnataka, Vidhana Soudha, for further action.
Sd/- Sd/-
JUDGE JUDGE
mn/bss