Karnataka High Court
B Jagadeesha @ Jagga @ Kalla Jaga @ Sanju vs State By Mandya West Police on 7 June, 2018
Author: R.B Budihal
Bench: R.B Budihal
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.76/2013
c/w
CRIMINAL APPEAL NO.105/2013,
CRIMINAL APPEAL NO.232/2013,
CRIMINAL APPEAL NO.228/2013,
CRIMINAL APPEAL NO.131/2013,
CRIMINAL APPEAL NO.904/2013,
CRIMINAL APPEAL NO.175/2013.
IN CRIMINAL APPEAL NO.76/2013:
BETWEEN:
B. Jagadeesha @ Jagga
@ Kalla Jaga @ Sanju
S/o Boraiah
Aged about 28 years
R/at No.416, Mallattahalli
Near Dr. Ambedkar College
Bangalore.
... Appellant
(By Sri Ravindra Gowda, Advocate for
Sri Reny Sebastian, Advocate)
-2-
AND:
State by Mandya West Police
Mandya
Represented by the Public Prosecutor.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section 374
(2) of Cr.P.C praying to set aside the conviction and
sentence dated 29.11.2012 passed by the Addl.
District and Sessions judge, Mandya in
S.C.No.184/2008 convicting the appellant/accused
for the offences punishable under Sections 143, 148
and 302 r/w 149 of Indian Penal Code.
IN CRIMINAL APPEAL NO.105/2013:
BETWEEN:
Sri Chethan @ Chikimiki
S/o Ramu
Aged about 27 years
R/o Hariyambadi, Mandya.
Now R/at. C/o Mahadevamma
Near Bisilu Maramman Temple
M.C. Road, Kallahalli,
Mandya-571 401
... Appellant
(By Sri M.R. Nanjunda Gowda, Advocate)
AND:
State of Karnataka
by Mandya West Police, Pin-571401.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
-3-
This Criminal Appeal is filed under Section 374
(2) of Cr.P.C praying to set aside the judgment of
conviction and order of sentence dated 29.11.2012
passed by the Addl. District and Sessions Judge,
Mandya in S.C.No.184/2008 convicting the
appellant/accused for the offences punishable under
Sections 143, 148 and 302 r/w 149 of Indian Penal
Code.
IN CRIMINAL APPEAL NO.232/2013:
BETWEEN:
1. Nagendra @ Karigudda
S/o late Yamegowda
Aged about 28 years
Resident of 2nd Cross
Hale Uru, Kallahalli
Mandya-571 401.
2. Basavaraju @ Basava
S/o Naganna
Aged about 28 years
Resident of Chandagalu Village
Mandya Taluk-571 401
Mandya District.
Native of Thorehalli Village
Chamarajanagara.
3. Mahesha @ BPL
S/o Huchegowda
Aged about 29 years
Residing behind Water Tank Road
Kallahalli,
Mandya-571 401.
... Appellants
(By Sri Chethan B., Advocate)
-4-
AND:
State by Mandya West Police
Mandya Taluk-571 401
Mandya District.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section 374
of Cr.P.C praying to set aside the order dated
29.11.2012 passed by the Addl. District and Sessions
Judge, Mandya in S.C.No.184/2008 convicting the
appellant/accused Nos.5, 8, 10 for the offences
punishable under Sections 143, 148 and 302 r/w
Section 149 of Indian Penal Code.
IN CRIMINAL APPEAL NO.228/2013:
BETWEEN:
Shivaraja @ Shiva
@ Gombe (A.12)
Aged about 27 years
S/o Kalegowda
R/o 7th Cross, Marigowda Layout
Mandya City and Taluk
Mandya District-571 401.
... Appellant
(By Sri H.C.Hanumaiah, Advocate)
AND:
State of Karnataka
by Mandya West Police
by State Public Prosecutor
High Court Buildings
Bangalore-560 001.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
-5-
This Criminal Appeal is filed under Section
374(2) of Cr.P.C praying to set aside the judgment of
conviction and sentence passed against him dated
29.11.2012 passed by the Addl. District and Sessions
Judge, Mandya in S.C.No.184/2008 convicting the
appellant/accused for the offences punishable under
Sections 143, 148 and 302 r/w Section 149 of Indian
Penal Code.
IN CRIMINAL APPEAL NO.131/2013:
BETWEEN:
D.Dilipa @ Bhangi, (A-6)
S/o Jayanna
Aged about 23 years
Auto Driver, 14th Cross,
Chamundeswari Nagar
Mandya City-571 401.
... Appellant
(By Sri P. Dinesh Kumar Rao, Advocate)
AND:
The State of Karnataka
by Mandya West Police
Mandya City-571 401
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374(2) of Cr.P.C praying to set aside the judgment of
conviction and sentence dated 29.11.2012 passed by
the Addl. District and Sessions Judge, Mandya in
S.C.No.184/2008 convicting the appellant/accused
for the offences punishable under Sections 143, 148
and 302 r/w Section 149 of Indian Penal Code.
-6-
IN CRIMINAL APPEAL NO.904/2013:
BETWEEN:
Satisha @ Fakeera
S/o Shivananju
Aged about 25 years
Auto Driver
Resident of 5th Cross
Marigowda Badavane
Mandya-571 401.
... Appellant
(By Sri G. Suresh, Advocate)
AND:
State by Mandya West Police
Mandya Taluk-571 401
Mandya District.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374(2) of Cr.P.C praying to set aside the order dated
29.11.2012 passed by the Addl. District and Sessions
Judge, Mandya in S.C.No.184/2008 convicting the
appellant/accused No.11 for the offences punishable
under Sections 143, 148 and 302 r/w Section 149 of
Indian Penal Code.
IN CRIMINAL APPEAL NO.175/2013:
BETWEEN:
Syed Johar @ Babu
S/o Syed Jabbar
Aged about 27 years
Occupation-Auto Driver
-7-
Residing at 10th Cross
Gandhinagar
Taluk & District Mandya.
... Appellant
(By Sri Pavan Sagar, Advocate for
Sri P. Prasanna Kumar, Advocate)
AND:
State of Karnataka
by Mandya West Police Station
Mandya.
Represented by its Special Public Prosecutor
High Court Building
Bangalore-560 001.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374(2) of Cr.P.C praying to set aside the order dated
29.11.2012 passed by the Addl. District and Sessions
Judge, Mandya in S.C.No.184/2008 convicting the
appellant/accused No.9 for the offences punishable
under Sections 143, 148 and 302 r/w Section 149 of
Indian Penal Code.
These Criminal Appeals coming on for Hearing
this day, BUDIHAL R.B. J. delivered the following:-
JUDGMENT
The above appeals are preferred by accused Nos.4, 7, 5, 8 and 10, 12, 6, 11 and 9 respectively being aggrieved by the judgment and order of conviction and sentence passed by the Additional -8- Sessions Judge at Mandya dated 29.11.2012 passed in S.C.No.184/2008.
2. By the said judgment and order of conviction, the appellants herein were convicted for the offences punishable under Sections 143, 148 and 302 r/w 149 of the IPC, out of them accused Nos.1 to 3, 13 and 14 have been acquitted by the said Court for the offences punishable under Sections 120B, 109, 302 and 212 of the IPC.
3. Brief facts of the prosecution case as per the complaint averments Ex.P1 are that PW1 the Head Constable No.214 by name Shivalingaiah filed the complaint alleging that on 22.4.2008 in connection with the assembly elections he was on duty in front of the Inspection Bungalow at Mandya. When he was nearby the front gate and he was on duty at 10.45 a.m. in front of the Haripriya Hotel, towards the western gate, there was some galata going on and people have gathered there. He also went to the said place there he noticed some 5-6 unknown persons -9- were assaulting one person with long. When he went nearby the said place, all those assailants boarded the auto rickshaw and went away towards Mysore. The injured was struggling with the injuries and there he found he has sustained injuries to his head, upper and lower limbs and there were bleeding injuries. The victim was one Mahesh s/o Rangaswamy-PW11. Immediately he informed the same to the control room and he got the vehicle and shifted the injured to Mandya District Hospital. The assailants were of age group of 20 to 25 years. If he again see them he will identify them, hence he requested to take legal action against the assailants who assaulted Mahesh.
4. On the basis of the said complaint case came to be registered in Crime No.102/2008 for the offences punishable under Sections 143, 144, 147, 148, 324, 307 r/w 149 of the IPC and after the death of Mahesh due to the injuries and as per the police
- 10 -
requisition the offence under Section 302 was inserted in place of 307 of the IPC in the said case.
5. After conducting investigation, Investigating Officer filed the charge sheet against the accused persons for the offences punishable under Sections 143, 144, 147, 148, 120B, 212, 302 r/w 149 of the IPC.
6. After hearing both sides the trial Court framed the charges against the accused persons for the said offences and also for the offence under Section 109 of the IPC. When the charges were read over and explained to the accused persons, accused pleaded not guilty and claimed to be tried, hence the matter was posted for recording the evidence.
7. Prosecution in support of this case in all examined 42 witnesses and got marked the documents Exs.P1 to P144 with sub-markings and also got marked M.Os.1 to 23. Thereafter incriminating material was read over to the accused
- 11 -
persons by way of questionnaire and answers given by the accused by recording their respective statements.
8. On the side of the defence no witnesses were examined, but however during the course of cross- examination of the prosecution witnesses, documents at Exs.D1 and D2 were got marked and also produced another document Ex.D3.
9. After hearing the arguments of both sides and after considering the materials placed on record both oral and documentary, ultimately the lower Court acquitted accused Nos.1 to 3, 13 and 14 and convicted accused Nos.4 to 12. Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the said judgment on the grounds as they have mentioned in the respective appeal memorandums the appellants- accused in the above appeals are before this Court.
- 12 -
10. We heard the arguments of the learned counsel appearing in respect of accused Nos.12, 7, 5, 11, 8 and 10, 4, 6, 9, so also heard the arguments of the learned Additional SPP on behalf of the respondent-State.
11. Learned counsel for the appellants submitted that the eyewitnesses PWs.2 to 8 have turned hostile and they have not supported the case of the prosecution. It is also their contention that though PW1-Head Constable the complainant in this case also claims that he is the eyewitness to the incident, but he cannot be considered as eye-witness. In this behalf of the learned counsel would draw our attention to the entire material in the paper book and made their submission firstly that during the course of cross-examination of PW.1, he admitted that he was not having the proper vision and about 18 years back itself he has taken treatment for the same and he has also admitted in his evidence that he cannot properly see the objects at some distance, he also
- 13 -
deposes that if he go very close to the said object, then only he can see the same. In that light it is submitted that he will not be an eye-witness. The learned counsel also made the submission that though it is the case of the prosecution that he participated in the Test Identification Parade and identified the accused persons, looking to his evidence in the cross-examination, it clearly goes to show that even the accused persons were brought and were made to stand in a row. It is also submitted that even earlier to Test Identification Parade the accused persons have been seen by PW1. Apart from that it is also the submission that Test Identification Parade was conducted after the lapse of nearly nine months from the date of incident. Hence, it is their contention that in view of these factual aspects brought on record no evidentiary value can be attached to the Test Identification Parade. They also made the submission that so far as the recovery aspect is concerned, none of the panch witnesses to the respective mahazars have supported the case of
- 14 -
the prosecution. They all turned hostile and even when they were cross-examined by the Public Prosecutor, nothing has been elicited from their mouth so as to believe the case so as to recovery of particular articles from the possession of particular accused persons. Hence, the learned counsel made the submission that even the recovery aspect also is not satisfactorily established by the prosecution. Learned counsel also took us to the evidence of the important witnesses and made their submission that none of the witnesses have spoken about the participation and assaulting the deceased Mahesh. Hence, it is their contention that when on the basis of the very same evidence the learned Sessions Judge has acquitted accused Nos.1 to 3 and 13 and 14, whereas he has convicted the appellants-accused. They made the submission that, looking to the prosecution material serious doubt arises so far as the case of the prosecution and about participation of these accused persons in the alleged incident. Hence, prosecution not proved its case beyond all reasonable
- 15 -
doubt. The benefit of doubt may be given to the accused persons. It is also their contention that even though voluntary statement said to have been given by the accused, has not been properly established. It is the contention that the observation made by the trial Court that even if the witnesses turned hostile, but the Investigating Officer has spoken about these things is not a sufficient ground to face conviction in respect of the above appellants-accused are concerned. Hence, they made the submission to allow all the above appeals by setting aside the judgment and order of conviction passed by the Court below and to acquit them from all the charges.
12. Per contra, learned Addl. SPP made the submission that though eyewitnesses PW.2 to 8 turned hostile and not supported the case of the prosecution, but the complainant Head Constable is also the eyewitness to the incident and looking to his evidence he has clearly spoken about the persons who were present at the spot and even he has spoken
- 16 -
that he has seen those persons and immediately they boarded the auto rickshaw and went away from the said place. Learned Addl. SPP further made the submission that he has given the features of the said accused persons and their age and he has stated in the complaint itself that in case if he see them again, he can identify those accused persons. He made the submission that he participated in the Test Identification Parade and he identified some of the accused persons. Further he submitted that the Test Identification Parade conducted before the Taluka Executive Magistrate, it clearly goes to show that the evidence of PW1-Head Constable inspires the confidence of the Court and it is worth believable material. Coupled with them, the learned Addl. SPP also brought our attention to the evidence of PW11 who is father of the deceased and made the submission that so far as two accused persons are concerned, he clearly stated in his evidence regarding participation that he also went to the said place, at that time two accused persons went away from the
- 17 -
said place, they are accused Nos.11 and 13. Hence, it is his contention that the evidence of PW1 to that extent is also gives support from the evidence of PW11 father of the deceased Mahesh.
13. Learned Addl. SPP further made the submission that so far as recoveries are concerned in view of the opinion of the panch witnesses have supported the case of the prosecution, but the Investigating Officer has supported the case and he has spoken about the recoveries in the presence of those panch witnesses and he has specifically spoken about the mahazar drawn in the presence of the panch witnesses. Therefore, it is his submission that his evidence cannot be rejected only on the ground that he is a Police Officer, he has no personal interest in the matter and even during the course of the trial the evidence has not established their enmity between the Investigating Officer and accused persons. Therefore, on the basis of such material, evidence of the Investigating Officer is to be relied
- 18 -
upon by the Court which is rightly relied upon by the learned Additional Sessions Judge in coming to such conclusion.
14. Learned Addl. SPP further made the submission referring to the photographs at the time of recoveries affected and he made the submission that so far as the photographs are concerned the said witnesses have admitted. Therefore, it is his contention that even if they turned hostile with regard to some portion, but their evidence cannot be totally rejected. Whatever the evidence which is favourable to the prosecution case is to be relied upon by the Hon'ble Court. Hence, it is his contention that looking to the entire materials so also the judgment and order of the Court below the learned Sessions Judge taken these aspects into consideration and he rightly comes to the conclusion that prosecution proved its case beyond all reasonable doubt.
- 19 -
15. Learned Addl. SPP also refers to the FSL report and also another report regarding finger print on the auto rickshaw referring to the evidence of PW38 in that regard and made the submission that these experts opinion regarding the bloodstained clothes, bloodstains on the weapons used, also supports the case of the prosecution. Hence, it is his contention that no illegality has been committed by the learned Sessions Judge in coming to such conclusion. Apart from that he also made the submission regarding extra judicial confession said to have been made by accused Nos.5 and 10. Considering all these material aspects learned Addl. SPP made his submission that there is no merits in all these appeals. Hence, he submitted to dismiss the appeals.
16. We have perused the ground in the appeal memorandum in all the above respective appeals, judgment and order of conviction passed by the Court below so far as the appellants are concerned, so also
- 20 -
acquittal of the accused Nos.1 to 3, 13 and 14 . We perused the oral evidence of the prosecution witness. The documents produced before the trial Court during the course of the trial and we have considered the oral submissions made by the learned counsel on behalf of the appellants, so also the oral submissions made by the learned Addl. SPP at the Bar.
17. Let us peruse the prosecution material to ascertain as to whether the judgment and order of conviction so far as the appellants are concerned is sustainable in law or not. The complainant is the Head Constable who said to have witness the alleged incident. he has been examined as PW1. On perusing his oral evidence in his examination-in-chief he deposed that he was deputed to work in front of the circuit house at Mandya, and he was on duty in front of the said circuit, there is Mysore-Bangalore Highway. On that day morning at 10.45 a.m. he heard the hue and cry nearby the west gate in front of the Haripriya Hotel and the said hotel is in front of
- 21 -
the circuit house. After hearing the sound, he went nearby Haripriya hotel, people already gathered at the said place. By the time he went to the highway and reached the said place, 5-6 persons assaulted one person with the long and thereafter boarded the auto rickshaw and went away. All those persons were unknown persons. The injured was struggling and he was one Mahesh S/o one Rangaswamy of Kallahalli. He sustained injuries to head, upper and lower limbs and there was bleeding. Immediately he informed about this incident to the control room and one ambulance came to the said place. He shifted the injured to Mandya District Hospital. The assailants were between the age group of 20 to 25 years, then he came to the police station and lodged the complaint at about 11.30 a.m. as per Ex.P1 and his signature is as per Ex.P1A. He has also spoken about the conduct of the panchanamas at the said place and the objects which were seized from the said place. He further deposed in his evidence that on 23.1.2009 as per the order of CW61 he went to the
- 22 -
jail premises of District Jail at Mandya. Tahsildar and office staff were present there and Test Identification Parade was conducted in respect of seven accused persons. The accused persons were made to stand on the row consisting of seven persons and they were made to stand one by one. He has also deposed about the identification of accused Nos.4, 8, 12 and 11. So far as accused No.11 is concerned, firstly he deposed that he has identified Satish as accused No.11, but further he deposed before the Court that he has not able to identify the said accused and he also deposed that he identified Manja @ Dilmanja, but he cannot identify him also. He further deposed about the accused person whom he has identified. He is not remembering the names of those accused persons. He further deposed that the accused person whom he has identified, they were present at the spot at the time of incident. So far as the weapons are concerned he made it clear that as the accused persons did not leave the weapons and went away along with the weapons, he is not in a position to identify the
- 23 -
weapons. During the course of cross examination he deposed that there was a distance of 120ft. from the spot and the place on which he was standing. Normally there will be heavy traffic in front of the Inspection-Bungalow in the highway and there is divider in between the said road. He further deposed that it was important for him to keep watch at the gate apart from observing the incident. Somebody came and told that galata was going on, thereafter he went to the place of incident. He further deposed that by the time he went to the spot the injured was already lying in a pool of blood and he was struggling. He has not mentioned about the facial features of accused persons in his complaint. He has not observed the colour of the dress worn by the accused persons. He also deposed that there were bloodstains on his clothes also, but he has not given the said clothes to the Investigating Officer. When the accused persons were apprehended and brought, he was on duty at the police station and he has also deposed that normally the photographs and their finger
- 24 -
impressions were taken by the apprehended accused persons. When he went to the Test Identification Parade, then he came to know about the names of accused persons as the Tahsildar told about the names of the accused. He has seen the apprehended accused persons in the police station, but he further deposed that he has not recollecting his memory as to whom he has seen and whom he has not seen. He does not know on which day accused No.4 was apprehended and brought, but he came to know about his arrest. He has shown his ignorance when it was suggested to him that about the apprehension of accused No.4 there was a T.V. news. He deposed that he is not reading the newspaper. He can see the persons properly who are at close distance to him, but he cannot see properly the persons who are at a distance. He is using the spectacle and he has not brought the spectacle to the Court. Without spectacle he cannot identify properly the accused persons. He further deposed that he is not remembering out of seven persons whom he has identified. As he is
- 25 -
having a vision problem he cannot identify the accused persons whom he has identified in the Test Identification Parade. In the cross-examination he also deposed that since 18 years he is having the vision problem and this problem is after he joined the service. Problem means he cannot see the objects at some distance. He underwent eye surgery and he is using the spectacle. He has not told about his problem to his superior officers. He took voluntary retirement because of this vision problem itself. He has not told before the superior officer that because of the vision problem he cannot attend to the work. When he went to the Test Identification Parade, the Tahsildar told the name of accused No.12. He denied the suggestion that he has not at all seen the incident. Therefore, looking to the evidence of this PW1 who said to be the complainant as well as the eyewitness to the incident it is also not his case that he has seen all the 14 accused persons. He mentioned in the complaint that some 5-6 unknown persons were the assailants and immediately they
- 26 -
boarded the auto rickshaw and went away. He admitted that regarding the facial features about the said assailants he has not mentioned in his complaint. Admittedly he is suffering from the vision problem. He cannot see the objects at some distance. Even according to his evidence he has not seen the assault caused, he has stated in the examination-in- chief itself by the time he went to the said place the victim was lying in a pool of blood and he was struggling. This shows that he went to the said place, he has seen only the person who was lying in a pool of blood and struggling and not the assault made by even those 5-6 unknown persons also. When he himself admitted in his evidence that he has vision problem and deposed on oath that he cannot see the objects at some distance properly and he can see only if it is very close to him. It is not safe for the Court to rely upon such evidence. Apart from that his evidence goes to show that even the accused persons were made to stand in the row in the Test Identification Parade, he has further admitted in his evidence when
- 27 -
the accused persons were brought to the police station he was on duty in the police station. Therefore, there was occasion for this person to see the accused persons and their features even earlier to his participation in the Test Identification Parade. The materials go to show that incident took place on 22.4.2008, whereas Test Identification Parade was conducted on 23.1.2009 nearly after nine months. Therefore, when there is delay in identifying the accused persons, it is not safe for this Court to rely upon the evidence of this PW1 who said to have identified the accused person with all these infirmities which he has spoken in his examination so also in his examination-in-chief. Therefore, so far as the evidence of PW1 we are of the clear opinion that his evidence is not worth believable and it is not safe to rely upon. The learned Sessions Judge while appreciation of the oral evidence of the prosecution witnesses, he has not observed all these aspects of the case which are material facts in coming to the conclusion regarding the participation and the
- 28 -
assault said to have been made by the accused persons. As per the prosecution case PWs.2 to 8 are said to be the eye-witnesses to the incident, but those witnesses have turned hostile and not supported the case of the prosecution. Even when they were cross- examined by the Public Prosecutor by treating them hostile nothing has been elicited from their mouth so as to believe the story of the prosecution about participation and the assault by the appellants- accused herein are concerned. Therefore, their evidence will not help the prosecution in proving the prosecution case.
18. Now another witness said to be PW11- Rangaswamy father of deceased Mahesh. Let us refer to his oral evidence. In his evidence he has deposed in the examination-in-chief at paragraph 5 that when he was having the eatables in the hotel, one server came and informed that somebody assaulted his son Mahesh with matchu. Thereafter, himself, B.T.Govindaraju, immediately came out of the said
- 29 -
hotel, when he saw his son, he was lying there with bleeding injuries to the head and to the upper limbs, immediately he provided water to him and in the meanwhile police also came in the ambulance and his son was shifted to the District Hospital at Mandya. When he saw the assailants of his son they were running away by holding matchu in their hands, as the condition of his son was very serious in the Mandya hospital, he was taken to Apollo hospital at Mysore, but on the next day at 9.30 a.m. he expired. Police came to the Apollo hospital and conducted mahazar and at that time police enquired him. Out of the persons ran away on the date of the incident, the witnesses identified one person wearing full sleeves white colour T. Shirt is accused No.11. Similarly he has also identified another accused person who was wearing the T.Shirt of purple colour and the said accused person is accused No.13, but he deposed that he has not identified the other assailants. He also offered his explanation that some of the assailants as they were running only showing the
- 30 -
back portion, because of that reason he was not in a position to identify them, to some extent this witness has treated as hostile by the prosecution and he was also cross-examined by the public prosecutor, but even in the cross-examination he has not admitted the suggestion made by the public prosecutor so far as the other accused are concerned. In the cross- examination on behalf of accused Nos.1, 4, 8 and 14 he has deposed that he does not know accused No.1 and he has not seen earlier also, he is not having any conversation with him and till that date he has not seen his face, when he went to the spot himself and his car driver were present. In the cross examination on behalf of accused Nos.5 to 7, 9 to 13 he deposed that he stated about the said fact of he identified before the police on 24th itself. He denied the suggestion that he has not stated before the police that while running he has seen accused Nos.11 and
13. He denied the suggestion that he has not at all seen accused Nos.11 and 13 and on that day they were not at all present. He is deposing falsely that
- 31 -
those two persons were running from the said place. This evidence of PW11 is against two accused persons 11 and 13. Out of that, accused No.13 has already been acquitted by the order of the learned Sessions Judge. Where the witness did not know the accused prior to the incident, the failure of prosecution to get identified by the witness considerably distracts value attached to the evidence of such witness. Only because witnesses did not identified the accused, accused are not entitled to acquittal, the court has to consider whether other evidence led by prosecution otherwise proves the case beyond all reasonable doubt. In that light let us consider other evidence. Now so far as accused No.11 is concerned, the evidence of this witness is also to be appreciated along with evidence of other witness so far as the recoveries and the voluntary statement relied upon by the prosecution.
19. Apart from the oral evidence of PWs.2 to 8, so also the evidence of PW1 the complainant Head
- 32 -
Constable, prosecution in order to prove its case also relied upon the recoveries of the weapons and other material objects and also the voluntary statements said to have been given by the accused persons. Let us peruse the said material whether prosecution is able to establish the recovery aspect from the above material to the satisfaction of the Court with acceptable and worth believable materials. So far as accused No.12 is concerned, no recoveries have been made from him at his instance. Even according to the prosecution, there is no voluntary statement of this accused before the Investigation Officer. Therefore, so far as accused No.12 is concerned, there is no material so far as the recovery aspect is concerned.
20. Now coming to the other accused persons, accused No.7 who is appellant in Criminal Appeal No.105/2013, the prosecution case is that from him one chopper was seized under Ex.P77 and one mobile phone is seized under seizure mahazar Ex.P81. So far as these two panchnamas are concerned, the
- 33 -
supporting witnesses examined are PW30 and PW33. They have not supported the case of the prosecution regarding the seizure of the chopper as well as the mobile phone. So far as the said accused is concerned, it is the prosecution case that he made the extra judicial confession admitting the guilt and he made such extra judicial confession before PW26 the witness by name Rajath Aradhya. In this connection we perused the evidence of PW26, he has not supported the prosecution case and he has turned hostile. Therefore, there is no worth believable evidence to support the alleged extra judicial confession said to have been made by accused No.7. Therefore, prosecution was not able to gain any support from the panch witness go for as recovery under Mahazar Ex.P77 and Ex.P81 and as we have already observed, so far as the extra judicial confession also there is no supporting material on the side of the prosecution. In that light the contention of Addl. SPP is not acceptable and reliable.
- 34 -
21. So far as accused No.9, who is the appellant in criminal appeal No.175/2013 is concerned, the materials on record shows that the eye witnesses have not identified accused No.9. So far as the recovery of one iron long at the instance of accused No.9 is concerned, recovery mahazar has been drawn as per Ex.P.63 and one Sharath (P.W.16) and P.W.15 - Chandrashekar have been examined in support of Ex.P.63. They have turned hostile and not supported the case of prosecution. When cross- examined by learned PP by treating them as hostile, even at that time, nothing has been elicited to believe the story of prosecution that in their presence, the recovery has been effected.
22. Accused Nos.5, 8 and 10 are the appellants in criminal appeal No.232/2013. So far as accused No.5 is concerned, the case of prosecution is that a long was seized under Ex.P.61 and a mobile handset was also seized as per Ex.P.65. So far as Ex.P.61 for the seizure of long is concerned, two witnesses were
- 35 -
examined as P.Ws.15 and 16 and both of them have turned hostile. So far as the mobile handset at Ex.P.65, one witness has been examined as P.W.18 and he has also not supported the case of prosecution and turned hostile. In that light, recovery at the instance of accused No.5 has not been proved.
So far as accused No.8 is concerned, the case of prosecution is that chilly powder packet was recovered under Ex.P.64. In support of the same, P.Ws.15 and 16 were examined, they have not supported the case of prosecution. Even in the cross- examination also, nothing has been elicited from their mouth so as to believe the story of prosecution to show that the seizure of chilly powder packet was made in their presence. It is further case of the prosecution that One Nokia mobile phone handset said to have been seized in the presence of panch witnesses and Ex.P.79 had been drawn in this regard. To prove the same, P.W.28 has been
- 36 -
examined and he has turned hostile and not supported the case of prosecution. So far as the accused No.10 is concerned, one long is said to have been seized under the recovery mahazar Ex.P.76. To prove the said mahazar and the recovery aspect, the prosecution has got examined B. Prakash (P.W.30), he has also turned hostile and not supported the case of prosecution.
23. In respect of accused No.6 who is the appellant in criminal appeal No.131/2013, two items were said to have been seized in the presence of panch witnesses by the Investigation Officer. Long is said to have been seized under the seizure mahazar Ex.P.62 and P.Ws.15 and 16 are said to be the panch witnesses for the said seizure mahazar. Both these witnesses have turned hostile and have not supported the case of prosecution. Another article recovered from accused No.6 is Airtel sim card and it is said to have been seized in the presence of P.Ws.20 and 21. Both of them have turned hostile and have
- 37 -
not supported the case of prosecution. Even in the cross examination of these two witnesses by the Public Prosecutor by treating them hostile, the said suggestion that in their presence, the articles were seized, has been denied by these witnesses.
24. So far as the accused No.11 who is the appellant in criminal appeal No.904/2013 is concerned, the case of the prosecution is that the blood stained shirt which was put into the cover has been seized as per Ex.P.68. To prove the said aspect, the prosecution has examined P.W.22, who has also turned hostile and not supported the case of prosecution. Even in his cross examination, he has not supported the case of prosecution.
Even as could be seen from the material in so far as accused No.4 is concerned, one old Bajaj CT- 100 Motor Cycle and two iron macchu were recovered under Ex.P74 and Ex.P.73 and examined P.W.27 and have not supported the case of prosecution.
- 38 -
25. Looking to the prosecution material, so far as the recoveries are concerned, no panch witnesses have supported the recovery of any of the items from the accused persons. Learned Additional SPP, during the course of arguments, submitted that even the panch witnesses have turned hostile. The evidence of investigation officer is reliable and worth believable and the same can be relied upon by the Court. In this connection, he has relied upon the decision of the Apex Court reported in the case of MODAN SINGH Vs. STATE OF RAJASTHAN reported in AIR 1978 SC 1511. We have perused the principles enunciated in the said decision and also the factual matrix involved in the said case. Perusing the factual matrix in the reported decision so also the factual aspect involved in the cases on hand, they are not exactly one and the same.
26. It is the case of prosecution that, the accused persons gave voluntary statement that if they are taken, they will point out the place at which
- 39 -
the incident took place and also the place where they had hidden the weapons and accordingly, the prosecution submitted that so far as accused No.4 is concerned, he gave voluntary statement as per Ex.P.115, accused No.5 as per Ex.P100, accused No.6 as per Ex.P.101, accused No.7 as per Ex.P.129, Accused No.8 as per Ex.P102, accused No.9 as per Ex.P.103, accused No.10 as per Ex.P.130 and Accused No.11 as per Ex.P.104. We have perused these exhibits and looking to the oral evidence of the investigation officer, what is said to have been stated by the accused persons in their voluntary statements is not repeated on oath by the investigation officer in his evidence. He has simply referred and they have been marked as exhibits, that is not enough. The statement that has been made by the accused has to be repeated by the investigation officer in his oral evidence before the Court in their own words and that portion above which led to discovery of an article, other thing used for commission of offence. Then only, the Court can rely upon such evidence
- 40 -
and it can come to know as to what exactly the accused person have stated.
27. So far as hiding the weapons are concerned, the accused were taken to the said place and they pointed out the said weapons and produced the same before the police. When that is so, simply making reference to the documents, i.e., the voluntary statement given by the accused, it is not enough for the Court to come to the conclusion that the prosecution has established the material with regard to voluntary statement said to have been given by the accused persons.
28. Even with regard to the recovery aspect, no doubt, it is the case of prosecution that the recoveries are effected at the instance of the accused persons. We have carefully perused the evidence of the prosecution witnesses in respect of each of these accused persons. There is no consistency in the evidence of these witnesses that the accused led them and the police to the said place. No doubt, the
- 41 -
learned Additional SPP referring to the recovery aspect has relied upon the photographs produced, which were accepted during the course of trial, but only on that basis, it cannot be said that the recovery aspect is in compliance of Section 27 of the Indian Evidence Act. Unless and until, it is in conformity with Section 27 of the Indian Evidence Act, it cannot be said the prosecution has established even the voluntary statement said to have been given by the accused persons so also the recoveries effected at the instance of the accused persons.
29. We have perused the oral evidence of the investigation officer in respect of the recovery aspect. If the oral evidence of the investigation officer is accepted for the sake of appreciation of the prosecution case, even on that basis, the Court cannot come to the conclusion that the prosecution has proved the case beyond all reasonable doubt when all the other material eye witnesses have turned hostile. The evidence of P.W.1 is also not believable
- 42 -
and T.I. parade also does not inspire the mind of the Court to come to the conclusion that prosecution has proved its case. Extra judicial confessions made by the accused before the witnesses i.e. P.W.26 by accused No.7 and P.W.25 by accused No.5. The said witnesses have also turned hostile and not supported the case of prosecution. so far as accused Nos.5 and 13 are concerned, the Investigation Officer (P.W.40) has deposed, the mobile hand sets which were in the name of accused Nos. 5 and 13 were recovered and he has not produced any documents before the Court. Therefore, in the absence of any material to show that the said mobiles are standing in the name of accused Nos.5 and 13, only on the basis of the oral say by the investigating officer, it cannot be accepted that the prosecution has proved the case beyond all reasonable doubt.
30. Perusing the entire material, we are of the clear opinion that so far as the case against the appellants in the present appeals are concerned, the
- 43 -
prosecution has not proved the charges leveled against them beyond all reasonable doubt. Looking to the materials placed on record, reasonable doubt arises in the mind of the Court regarding the identity of the accused persons and their participation in the alleged act. Therefore, the benefit of doubt will have to be given to the appellants-accused. As we have already observed that on the very same set of evidence, the learned Sessions Judge has acquitted accused Nos.1 to 3, 13 and 14. Hence, even perusing the judgment and order of the learned Sessions Judge, the conclusion arrived at by the learned Sessions Judge is not in accordance with the materials placed on record. All the factual and the legal aspects have been completely over looked by the learned Sessions Judge in coming to such conclusion. So far as the appellants herein are concerned, the impugned judgment suffers from the legal infirmities and it is not sustainable in law. Hence, the appellants herein have made out the case. So as to interfere with it
- 44 -
31. Keeping in view the above said facts and evidence discussed by us, all the appeals are allowed. The judgment and order of conviction dated 29.11.2012 passed by the Additional Sessions Judge at Mandya in S.C. No.184/2008 as against the appellants-accused Nos.4, 7, 5, 8, 10, 12, 6, 11 and 9 respectively, for the offences punishable under Sections, 143, 148, 302 read with Section 149 of IPC is hereby set aside. The appellants in the above appeals are acquitted from the charges leveled against them.
The jail authorities are hereby directed to release the appellants herein forthwith, if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE Ap/Cs/-