Karnataka High Court
The State vs Dr Renuka Prasad on 27 September, 2023
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CRL.A No. 870 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023 R
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 870 OF 2017 (A)
BETWEEN:
THE STATE-REPRESENTED BY
ASSISTANT SUPERINTENDENT OF POLICE
PUTTUR SUB-DIVISION, PUTTUR,
D.K.(SULLIA PS)
BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.
- APPELLANT
(BY SRI. B.N. JAGADEESH, ADDL. SPP, ALONG WITH
SMT. RASHMI JADHAV, HCGP)
AND:
1. DR. RENUKA PRASAD,
S/O. K.M. VENKATRAMANA GOWDA,
AGE: 62 YEARS, DOCTOR BY PROFESSION,
R/O: AMARASHREE HOUSE, KANTHAMANGALA,
AJJAVARA VILLAGE, SULLIA TALUK-574239.
VINAYAKA
BV 2. MANOJ RAI S/O. RAMAYYA RAI,
AGE: 38 YEARS,
Digitally signed R/O: ERUBUNNANDU HOUSE,
by VINAYAKA B
V ALIKE POST AND VILLAGE,
Date: 2023.10.06 BANTWAL TALUK-574211.
17:12:53 +0530
3. NAGESH H R, S/O. KARIAPPA POOJARY,
AGE: 34 YEARS,
R/O: AJJIGADDE HOUSE,
ULAGADDUR VILLAGE,
UCCHANGI POST, SAKALESHPURA TALUK,
HASSAN DISTRICT-573134.
4. VAMAN POOJARY @ VAMAN SALIAN,
S/O. THIMMAPPA POOJARY,
AGE: 51 YEARS,
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NC: 2023:KHC:35288-DB
CRL.A No. 870 of 2017
R/O: SANOOR PADAVU HOUSE, POLALI,
KARIANGALA VILLAGE,
BANTWAL TALUK-574239.
5. SHARAN @ SHARAN POOJARY @ ROHIDAS,
S/O. SADASHIVA POOJARY,
AGE: 34 YEARS,
R/O: HOUSE NO.4/107, AKASHA BHAVAN,
ANANDA NAGARA, KAPIRGUDDE CROSS,
KAVOOR POST, MANGALORE TALUK-575015.
6. SHANKARA @ BHAVANI SHANKARA @ MANJOJ,
AGE: 35 YEARS,
S/O. SHEKARA POOJARY,
R/AT JAPPINAMOGERU HOUSE, TANDOLIGE,
MANGALORE TALUK, D K DISTRICT-575001.
7. H U NAGESH KUMAR S/O. H R UTTAPPA,
AGE: 55 YEARS,
R/AT HUDERI HOUSE,
MADENADU VILLAGE AND POST,
MADIKERI TALUK,
KODAGU DISTRICT-571201.
- RESPONDENTS
(BY SRI. R.B. DESHPANDE, ADVOCATE FOR R1, R2 AND R7,
SRI. P.B. UMESH, ADVOCATE FOR R3 AND R4,
SRI. DINESHKUMAR K. RAO, ADVOCATE FOR R5,
SRI. H.V. HARISH, ADVOCATE FOR
SRI. N. DEENABANDHU, ADVOCATE FOR R6)
THIS CRIMINL APPEAL IS FILED U/S. 378(1) AND (3) CR.P.C
BY THE STATE PRAYING TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGEMENT AND ORDER DATED 21.10.2016 PASSED
BY THE V ADDL. DIST. AND SESSIONS JUDGE, D.K., MANGALURU
SITTING AT PUTTUR, D.K. IN S.C.NO.152/2011 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 120(B), 302 AND 109 R/W 34 OF IPC & ETC.
THIS CRIMINAL APPEAL PERTAINS TO PRINCIPAL BENCH,
BENGALURU, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 18.07.2023, COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT'
THIS DAY, AT DHARWAD BENCH THROUGH VIDEO CONFERENCING,
SREENIVAS HARISH KUMAR, J, DELIVERED THE FOLLOWING:
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CRL.A No. 870 of 2017
JUDGMENT
This is an appeal by the State against acquittal judgment passed by V Addl. Dist. & Sessions Judge, Dakshina Kannada, Sitting at Puttur (for short 'trial court'), in Sessions Case No. 152/2011. Respondents 1 to 7 faced trial for the offences punishable under Sections 120-B, 109, 302 r/w 34 IPC.
2. A.S. Ramakrishna, the father of PW8-Vallish was killed in the incident that occurred at about 7.45 PM on 28.04.2011. The deceased Ramakrishna and PW8 were going for a walk everyday evening around 7.00 PM. On 28.04.2011, they went for a walk as usual and while returning home, as they came near Krishna Ayur Theraphy Clinic at about 7.45 PM, two persons suddenly came in front of them and inflicted severe blows to Ramakrishna with weapons. He sunk to ground. As PW8 hollered, a few passers by came there. The assailants fled that place. PW8 made a call to his house. Thereafter Ramakrishna was shifted to KVG Hospital where he succumbed to injuries around 8.40 PM. At 11.55 PM, PW8 made a report of the incident to the Police as per Ex.P.23. Registration of FIR in Crime No. 66/2011 was followed by investigation which led to chargesheeting all the respondents.
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3. PW1 to 87 were the witnesses examined by the prosecution. Ex.P.1 to 119 were the documents and MOs 1 to 58 were the material objects relied on by the prosecution for establishing its case. The trial court found that the evidence placed by the prosecution would not lead to convict the accused and hence acquitted them of all the offences by the judgment impugned in this appeal.
4. The following are the main reasons recorded by the trial court for acquitting the accused.
• Except PW30 and PW73 to 87, the rest of the prosecution witnesses have turned hostile;
• In Ex.P.23, the first information report given by PW8, there is nothing indicating conspiracy among the accused. • In Ex.P.23, PW8 has stated that two persons emerged from bushy plants near Krishna Ayurveda Theraphy and assaulted his father, but he denied to have given further statement as per Ex.P.25, P.25(a) and P.25(b). In Ex.P.25 or in the oral evidence of PW8 it is not forthcoming that accused Nos.5 and 6 or other accused were shown to him. In the examination in chief itself, -5- NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 PW8 clearly stated that he was not able to identify the accused. Even when he was taken to Mangaluru District Prison he was not able to identify the accused. • PW87 has stated in the cross examination that in the test identification parade conducted by the Tahasildar, Puttur, none of the witnesses identified the accused persons. • PW1 and 9 are the eyewitnesses according to the prosecution. But these two witnesses have not supported the prosecution case and failed to identify accused nos.5 and 6 in the Court.
• The motive for the incident was shown to be distribution of the family properties including the educational institutions between the first accused and PW4; accused no.1 suspected involvement of the deceased in more share being given to PW4. But the prosecution has failed to establish the motive. PW4 also turned hostile and the other witnesses examined for proving the motive also did not support.
• PW23 and 24 were the persons said to have been contacted by accused no.4 for causing death of the deceased. They were offered 'supari' but they refused. -6-
NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 When PW23 and 24 were examined in the Court for proving this aspect they did not support the prosecution. • The prosecution has failed to prove the conspiracy among the accused. Though the prosecution produced the call detail records (CDR) of the accused as per Exs.P.102 to 111, they were not supported by the certificate as required u/s 65-B of the Evidence Act. • In para 13 of the evidence of PW87, it is stated that on 11.05.2011, on the basis of further voluntary statement of accused no.3, PW87 came to know that accused no.3 had hidden in the farm namely, Amar Jyoti Farms, belonging to accused no.1 the clothes worn by accused 5 and 6 at the time of assaulting Ramakrishna and also the number plate containing Kannada numericals which was fixed to the motorcycle and these items were seized by her in the presence of PW40 and 41. But this aspect has not been proved.
• MO 12 to 15 were not identified by the witnesses PW1 and 9 and when they were subjected to cross examination, the Public Prosecutor gave suggestions about the colour of the clothes worn by accused 5 and 6 -7- NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 without showing the clothes marked MO 12 to 15. But the colours mentioned by Public Prosecutor differed from the actual colour of the clothes. Moreover, clothes were not seized at the instance of accused no. 5 and 6 in accordance with Section 27 of the Indian Evidence Act. Even the Investigating Officer admitted the colour difference.
• In Ex.P.23 it is written that two persons came by holding sword like weapons. In the examination in chief PW8 deposed that two persons assaulted his father with swords. But in Ex.P.25 it is mentioned that Ramakrishna was assaulted by choppers. Sword and chopper are different types of weapons and thereby the prosecution is not sure which weapon was employed for causing death of Ramakrishna. Therefore, using of MO 10 and 11 becomes doubtful.
• Seizure of MO 1 to 9 is supported by the witnesses to the panchanama drawn in that connection, but witnesses for seizure of MO 10 to 58 have turned hostile. The witnesses have merely admitted their signatures to the panchanamas or the mahazars but they do not establish -8- NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 the contents. The evidence of the official witnesses in regard to seizure of MO 10 to 58 has no support from the independent witnesses and even the seizures are not as per Sec. 27 of the Evidence Act.
• PW84 was not legally authorized to conduct investigation and the raid conducted by him on 08.05.2011 in the house of accused no.5 and 6 and recovery of 'supari money' of Rs.8,50,000/- from the house of accused no.5 and Rs.2,00,000/- from the house of accused no.6 has no legal sanctity. The search conducted by PW84 appears to be suspicious because he was working in Income Tax Department and he received credible information about ill gotten money or possessing assets disproportionate to known source of income of accused nos. 5 and 6 and for this reason raid was conducted.
• PW87 the Investigating Officer has admitted in the cross examination that no written order authorizing her to investigate had been given to her by Inspector General of Police and therefore she was also not authorized to investigate. For this reason investigations conducted by PW 84 and 87 cannot be approved and accepted. -9-
NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 • In the complaint there is no allegation against the accused that they had threatened PW5 Dr. Leeladhar or his family members and a case for the offences u/s 506 or 307 of IPC had also not been registered. Seizure of six pieces of 'Moksh Agarbatti Cover' from the house of PW5 appears to be redundant, unnecessary and misleading, moreso PW5 has denied production of the Agarbatti cover pieces and panchanama drawn as per Ex.P.69. • The prosecution has utterly failed to connect the accused persons to the murder of Ramakrishna.
5. Assailing the findings of the trial court, Sri B.N. Jagadish, the Additional State Public Prosecutor assisted by Smt. Rashmi Jadhav, the High Court Government Pleader argued on behalf of the State. Sri R.B.Deshpande, learned counsel argued on behalf of respondents 1, 2 and 7. Sri P.B. Umesh, learned counsel argued for respondents 3 and 6. Sri Dinesh Kumar K. Rao, learned counsel argued on behalf of respondent No.5 and Sri H.V. Harish, learned counsel argued on behalf of respondent No.6.
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6. Sri B.N. Jagadish began his argument with a comment that the trial court has utterly failed in appreciating and analysing the evidence placed before it by applying the yardstick of probabilities to the intrinsic value in evidence and the animus of the witnesses. No attempt to separate the grain from chaff was made by the trial court and this has resulted in miscarriage of justice. Elaborating the argument, he submitted that though most of the witnesses appear to have not supported the prosecution, in reality it is not so; proper appreciation of evidence would lead to a conclusion that they have spoken to the extent they knew about the incident. And of course some of the witnesses have fully turned hostile and it must be borne in mind that all of them were either related to accused no.1 or working in the institutions under his management. The trial Court has failed to notice the reason for those witnesses turning hostile.
6.1 PW8, 30 and 73 to 87 have clearly stated about the involvement of the accused in the homicidal death of A.S. Ramakrishna. Evidence of PW4 is also helpful. Though PW8 stated in the Court that he could not identify the accused, it should not have been a reason for treating him hostile. His
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 evidence clearly discloses as to how his father was brutally assaulted to death. Actually PW1 and 9 saw the assailants running away. To this extent an inference can be drawn from their evidence even though they did not identify the assailants in the Court. Merely for the reason that they were treated hostile, their evidence in entirety should not have been discarded.
6.2 Because of non identification of the accused by PW1, 8 and 9, the circumstances connecting the accused with the crime should have been properly appreciated by the trial Court. PW4 might have denied the enemity between him and accused no.1, but his evidence clearly discloses that the educational institutions founded by his father were divided between him and accused no.1 and, on a few occasions accused no.1 had scolded A.S. Ramakrishna in front of all. The totality of the circumstances indicates that accused no.1 strongly believed that Ramakrishna was responsible for a major share being given to PW4 during partition and part of the money decided to be given to him remaining unpaid. Therefore, accused no.1 hatched a conspiracy with accused 2 to 4 and 7 and then engaged accused no.5 and 6 who were 'supari killers'.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 6.3 As far as conspiracy is concerned, there is ample evidence. Accused nos. 5 and 6 were lodged in the farm house of wife of accused no.1 and they were being supplied food there. In order to conceal the identity of the vehicle being used for supplying food to accused nos. 5 and 6, the number plate of the vehicle was changed. The fake number plate was recovered by the Police during investigation. All the circumstances clearly provide proof for conspiracy. In this regard he submitted that direct evidence for conspiracy is not always available and inferences from the other proved facts must be drawn. Prosecution has been able to provide proof of this nature.
6.4 The blood group of Ramakrishna was 'O+ve'. The same blood group was detected in the clothes worn by accused 5 and 6 and also on the weapons. This part of the evidence has not been discredited. This is another circumstance which the trial Court has ignored.
6.5 The reason for most of the witnesses turning hostile becomes writ large from the evidence of PW5. He might have turned hostile but recovery of cut pieces of the wrapper of
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 'Moksh Agarbatti' packet provides hint to the fact that PW5 was under a threat. The name of the son of PW5 is Moksh. By sending cut pieces of wrapper, PW5 was indirectly threatened that he would be put in danger. Moreover he still continued to work in the college under the management of accused no.1. The trial court has failed to notice this important aspect being the reason for PW5 turning hostile.
6.6 There are no lapses in the investigation. Merely for the reason that charge sheet was filed by the Assistant Superintendent of Police, it is not possible to state that she was not authorized to hold investigation. She was a superior police officer having jurisdiction over the area where the offence was committed. Section 36 of Cr.P.C. clearly states that a superior police officer can exercise the powers of a station house officer within the area of his jurisdiction. The trial court has gone wrong in giving an adverse finding in relation to the investigation.
6.7 It is a settled principle of law that conviction can be recorded based on the evidence given by official witnesses. For many reasons independent witnesses turn hostile. It is wrong
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 to disbelieve the testimonies of the police officers if the investigation appears to have been conducted impartially. In the case on hand none of the police personnel has been discredited in the cross examination, the defence has utterly failed to demonstrate that the investigating officers were hostile to the accused from inception. Their evidence is very much believable and the trial court could have recorded conviction based on their evidence. Therefore, the judgment impugned in this appeal cannot be sustained at all. It has to be reversed and the accused are to be convicted for the offences charged against them.
7. Sri R.B. Deshpande argued that there is no error in the judgment of the trial court. Though prosecution examined 87 witnesses, all the independent witnesses did not support the prosecution case. The only eyewitness is PW8, not PW1 and 9. But PW8 did not identify the accused in the Court or during test identification parade. For this reason circumstances play an important role. Motive assumes importance when circumstances are considered. Projected motive is enemity that accused no.1 had towards Ramakrishna as the latter was found to be the person responsible for accused no.1 getting
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 lesser share in the division of management of the educational institutions founded by his father and still Rs.12 crore remaining unpaid. PW4 is the main witness to establish motive. He has not supported. Even the wife of the deceased Ramakrishna has not supported. Therefore motive has not been proved.
7.1. The other circumstances such as recovery of the weapons and clothes, and accused 5 and 6 being sheltered by accused no.1 in his farm house have not been established. Though 'O+ve' blood stains were detected on the clothes said to have been worn by accused 5 and 6, the prosecution failed to prove that those clothes belonged to accused 5 and 6 and the recovery mahazar drawn in that connection has also not been established. The blood samples of accused 5 and 6 were not collected and therefore merely for the reason that 'O' group blood was detected on the clothes and the weapons, it is impossible to come to the conclusion that the act was committed by accused 5 and 6 pursuant to conspiracy between accused no.1 and other accused.
7.2. He argued further that the police witnesses are always interested to see that the case investigated by them should end
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 in conviction of the accused; and this being settled principle, evidence given by police witnesses is not safe to be relied upon.
7.3. His last point of argument was that since this is an appeal against acquittal judgment, the presumption of innocence of the accused is doubly strengthened and it is not proper to reverse the acquittal judgment unless the findings given by the trial court appear to be perverse. The impugned judgment does not disclose perversity in appreciation of evidence and hence appeal deserves to be dismissed.
8. Sri Dinesh Kumar K. Rao argued that there is no evidence indicating that there were differences between accused no.1 and PW4. It appears that accused no.5 was fixed in the instant case because he was found to be an accused in the other cases. The police made use of this kind of a situation to falsely implicate him. Accused no. 7 is also falsely implicated showing him a member of conspiracy just because he applied for certified copies of the documents on behalf of some of the accused. This shows a major lapse in the investigation which cannot be ignored. He also pointed out that certain amounts of
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 money said to have been seized under the mahazars were not packed and therefore the seizure becomes doubtful. 8.1. It is shown that accused no.2 tried to commit suicide, but it was doubtful because he might have been assaulted severely by the police and to cover it up, suicide theory was built up. It has come in the evidence that accused no.2 went to police station on 01.05.2011 and 02.05.2011 but he was not arrested. Everything started from 09.05.2011 and till then there is no explanation as to what happened. Therefore there are many doubtful circumstances in the investigation itself. Accused No.5 was innocent and his implication was groundless. In this view there are no valid grounds to allow the appeal.
9. Sri Umesh argued that accused no.3 was arrested on the basis of voluntary statements of accused 5 and 6. It is not proved that accused 3 and 4 were working under accused no.1. There is no cogent proof for seizure of money from the custody of accused 3 and 4 on 08.05.2011 and 01.07.2011. Similarly, recovery of clothes is also not supported by independent witnesses. Prosecution has not proved that cut pieces of 'Moksh Agarbatti wrapper' were recovered from the residential
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 house of accused no.1. Accused no.3 was in custody from 08.05.2011. No effort was made to recover incriminating articles from his custody. The investigating officer has clearly admitted that there was difference in colours of the clothes. Even with regard to call details, the prosecution did not obtain certificate as required under Section 65-B of the Indian Evidence Act. Therefore, the trial court came to conclusion not to place reliance on the testimonies of the police officers. Now in the appeal against acquittal judgment it is not safe to place reliance on their testimonies in order to reverse the judgment. Hence, appeal deserves to be dismissed.
10. This is an appeal against acquittal judgment. We are conscious of the fact that the acquittal judgment cannot be so easily reversed unless it appears that the trial court has grossly erred in appreciating the evidence. The approach of the trial court must appear to be very casual. In the case of Chandrappa and Others Vs. State of Karnataka [(2007) 4 SCC 415], the Hon'ble Supreme Court has set out the following general principles regarding powers of the appellate court while dealing with an appeal against order of acquittal:
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 "(1) An appellate court has full power to review, reappreciate and consider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court."
11. As we find that the entire evidence needs to be reappreciated, we may briefly refer to what each accused has deposed. Before referring to the evidence of each witness, the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 factors relating to which the witnesses have spoken is tabulated as below:
Sl. Description of witnesses Witnesses No. and circumstances
1. Eyewitnesses PW1, PW8 and PW9
2. Inquest PW2, PW3, PW10, PW27, PW28 and PW29
3. Spot panchanama PW8 and PW30
4. Motive PW2, PW4, PW5, PW6, PW7, PW10 to PW13, PW21, PW54, PW55, PW56
5. Conspiracy PW16, PW17, PW21, PW23, PW24, PW54, PW55, PW56, PW61, PW63 and PW64
6. Preparation } PW14, PW15, PW16, PW25, PW50, PW51 and PW68 And Incidental matters } PW26, PW57, 58, 59, 60, PW61, PW62, PW72
7. Recovery and seizure PW31 to PW49, PW52, PW53, PW65, PW66, PW67
8. Other circumstances PW18 to PW20, PW22, PW23, PW24, PW65, PW66, PW67 and PW69 to PW71
9. PWD Engineer PW73
10. R.T.O. PW75
11. Doctor PW74
12. FSL PW77
13. Police PW76, PW78 to PW87 (underlining indicates witnesses being examined to prove more than one circumstance)
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12. Firstly, it is necessary to refer to the evidence given by PW8 who is the son of Ramakrishna. His evidence in examination in chief is that he and his father were going for a walk everyday evening around 7'o clock and on 28.04.2011, they went to Chennakeshava temple and from there to the market passing through Ambetadka road. They were returning home in the same road. Around 7.45 p.m. as they came near Krishna Ayurvedic Theraphy Clinic on Ambetadka road, two persons suddenly came in their front and gave blows to his father with swords on the head, face and chest. His father fell down and again they assaulted his father with machetes. As he screamed loudly, some persons came there and the assailants ran away from that place with the weapons. He made a call from his father's mobile phone to some people. Then his father was shifted to KVG Medical Hospital where he died around 8.40 P.M. He then went to Police Station and made a report of the incident as per Ex.P.23. He also deposed that on 29.04.2011 in between 6.30 and 7.30 A.M. the Police came to the place of occurrence and drew up a panchanama or the mahazar as per Ex.P.24 in the presence of Ramachandra Bhat (PW30) and Umesh (not examined). The police seized his father's broken
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 spectacles and mobile phone at that time and also collected the blood stained soil and sample soil. He identified the broken spectacles at MO6, mobile phone at MO7 and the blood stained soil and sample soil as per MO8 and 9 respectively.
13. He stated that on 18.05.2011 the Police recorded his further statement and at that time he came to know from the Police that five persons had been arrested and that accused 5 and 6 were the persons who had assaulted his father on 28.04.2011. Because he stated in the examination in chief that he could not identify accused 5 and 6 and stated further that he did not know the actual reason for the incident, he was treated hostile by the public prosecutor and cross examined. In the cross examination he admitted that Ex.P.23 was in his hand writing but refuted the suggestions that he actually saw accused 5 and 6 at the time of attack on his father and, fearing the accused he stated that he could not identify them. When his attention was drawn to his further statement dated 18.05.2011 that the accused namely, Sharan Alias Rohidas Alias Rohit and Shankar Alias Bhavanishankar Alias Manoj were the persons who assaulted his father, he made it clear that he came to know about the names of the assailants from the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Police and, he denied to have given statements before the Police as per Ex.P.25, P.25(a), 25(b) relating to motive behind the incident.
14. PW1 and PW9 were the persons who according to prosecution saw accused no.5 and 6 when they were running away after assaulting Ramakrishna. PW1-Karunakara Gowda. M, was working as Assistant Manager in the office of the K.F.D.C. of Aivarnadu Division. The prosecution examined him to prove that when he was in the house of PW9, both of them heard shoutings near Krishna Ayuvedic Theraphy Clinic and saw two persons wearing black pants and grey colour shirts running away and then leaving that place by riding a motorcycle. Thereafter they went near Krishna Ayurvedic Theraphy Clinic and saw one person having fallen down sustaining bleeding injuries and a weeping boy standing by the side of the injured. The prosecution also wanted to prove from him that he asked that boy about the injured and at that time the boy told that the injured was his father by name Ramakrishna A.S. working as Administrator at K.V.G. Medical College and that two persons suddenly came and assaulted his father and ran away towards the roadside bushes. Since PW1 did not depose so, he
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 was treated hostile by the public prosecutor. PW1 has not supported the prosecution case.
15. The evidence of PW9-Shivaraja. N, shows that PW1 had come to his house on 28.04.2011 and when they were discussing some official matter he heard somebody screaming near Krishna Ayurvedic Theraphy Clinic and both of them came out of the house. He saw somebody going at a distance and asked PW1 to see that person and then he went near the place from where the scream was coming. At that place he saw one person having fallen down in the pool of blood sustaining injuries on his head and other parts of the body. He saw one person, i.e., PW8, who was none other than the son of the injured. He came to know that the injured was A.S. Ramakrishna who was working as an Administrator of K.V.G. Medical College. He asked PW8 to make a telephone call to his relatives and then he himself informed the Police and also made a call to secure ambulance. Before the arrival of ambulance, a vehicle came and carried the injured to the hospital.
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16. His further deposition is that 10 to 15 days after the incident he came to know that 4 or 5 persons had been arrested by the police and came to know further from police that Bhavanishankara and Sharan were two of the accused. Because he stated that he did not come to know that the other accused got Ramakrishna killed by Bhavanishankara and Sharan and that he did not know about existence of some differences between accused no.1 and PW4-K.V.Chidananda, he was treated hostile to this extent. It was suggested to him that he saw two persons going on the road when he and PW1 came out of the house, and to this suggestion his answer was that he saw only one person and then asked PW1 to go and see that person. He denied to have given a statement as per Ex.P.26(a) to the effect that he would identify those persons if shown to him. He also denied that he made a statement before the police as per Ex.P.27 that he was aware of instigation made by accused no. 7-Nagesh Kumar to accused no.1 to get Ramakrishna killed by engaging supari killers.
17. PW2, 3 and 10 are the witnesses to the inquest drawn as per Ex.P.3. The prosecution has also made an attempt to elicit
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 from them the reason behind killing Ramakrishna. Inquest panchanama is not disputed.
18. PW2-Raviprakash is the younger brother of the deceased. His evidence in examination in chief shows that he came to know the attack on his brother when he received a call in between 7.45 and 8.00 p.m. on 28.04.2011 and immediately he rushed to K.V.G. Medical College Hospital where he saw the dead body of his brother. He has stated about the inquest conducted on the dead body on 29.04.2011. He noticed 25 injuries on the dead body. He stated about the police seizing his brother's torn blood stained clothes, a belt, a pair of Reebok shoes and socks, and packing them in white cloth. He identified all these items marked MO3 to 5. On 18.05.2011 he came to know about the arrest of five accused who were involved in murder of his brother and in particular about the arrest of accused 5 and 6 who had inflicted injuries to his brother at 7.45 p.m. on 28.04.2011. He also deposed that accused no.1 who was working as General Secretary of K.V.G. Educational Institutions conspired with his employees namely Manoj Rai, Nagesh and Vamana and got killed Ramakrishna by engaging accused 5 and 6. His evidence in chief discloses that
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 he had come to know from his brother that the latter had differences with accused no.1 but stated further that he did not know the reason for differences. He also came to know that accused no.7 had instigated accused no.1. Though he stated that the police took his statement on 18.05.2011, he was treated hostile and cross examined because he did not give evidence regarding some of the aspects in accordance with the statement recorded by the police during investigation. The portions of the statement marked as per Ex.P.4 and Ex.P.4(a) and Ex.P.4(b) were denied to have been given by him. These portions related to accused no.1 putting threat to the deceased on certain occasions in the background of certain differences of opinions that he had against Ramakrishna.
19. Ramakrishna was the nephew of PW3. He went to hospital as soon as he came to know about attack on Ramakrishna. He participated during inquest held on 29.04.2011 and saw injuries on the dead body. He has stated about police seizing the blood stained clothes, the shoes, the socks and the belt as per MOs 3 to 5 belonging to the deceased and produced by Dr. Suguna Gowda. He identified his signature on the inquest panchanama drawn as per Ex.P.3.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 When he read the newspaper, he came to know that somebody had killed Ramakrishna, but did not reveal their names. For this reason and also for the reason that he denied his knowledge about adverse impression accused no.1 had against the deceased, he was treated hostile and cross examined by the public prosecutor. He denied the suggestions given to him about the conspiracy amongst accused no.1 to 4 and 7, and the threat given by accused no.1 to Ramakrishna on several occasions regarding the management of the Medical College, and portion of statements marked as per Ex.P.5 and P.5(a) said to have been given by him.
20. PW10 is the wife of Ramakrishna. She went to hospital as soon as she came to know from the telephonic call of her son about the attack on her husband and saw the dead body. She stated about inquest conducted on 29.04.2011 and the seizure of her husband's clothes, shoes, socks and belt. She identified these items at MOs.3 to 5. She stated that she gave further statement before the police about what she came to know from the police that Sharan and Bhavanishankar had killed her husband. She has stated about the division effected by the founder of the educational institutions, namely,
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Venkatramana Gowda, of the management of the educational institutions between his two sons, but as she took ignorance about the reason for her husband resigning from the educational institutions, she was treated hostile by the public prosecutor and cross examined. During cross examination she denied to have given statements as per Ex.P.28 and 28(a) about her husband being insulted by accused no.1 during inspection time and threat given to him by accused no.1 and also about the involvement of accused no.1 with the aid of accused 2 to 4 in getting her husband killed through accused 5 and 6.
21. Besides PW2, PWs4, 5, 6, 7, 10 to 13 and 21 are some more witnesses examined by the prosecution to prove motive for the incident. Almost all these witnesses turned hostile. But from the evidence of PW4-K.V. Chidananada, the brother of accused no.1, it can be made out that after coming to know of the incident when his son, i.e., PW7-K.S. Akshay received a telephone call, he went to hospital and saw PW8 there and came to know from him as to how the incident occurred. He has also stated that management of the educational institutions had been divided between him and accused no.1, that the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 deceased was working as an Administrator in the Medical College and that he came to know through media about involvement of accused no.1 and accused no.2-Manoj Rai in the killing of Ramakrishna. Because he turned hostile to the prosecution case about the motive, he was subjected to cross examination by the Public Prosecutor. He was suggested that accused no.1 did not like intervention of deceased in the division of the management of the institutions and for that reason, accused no.1 had threatened and insulted the deceased once. He was further suggested that he had written letter to his father complaining against the first accused and that he produced that letter before the police during investigation. Besides denying this suggestion, he denied to have handed over the letter shown to him by the Public Prosecutor. He did not accept the signature on the letter but stated that the signature found on the letter would resemble his signature. That apart, he clearly admitted one suggestion that in the month of March, 2011 there had taken place exchange of words in the campus of the College between him and accused no.1 regarding mess of the college in the presence of Dr. Kaverappa, K.R.Gangadhar, Venkatramana Gowda Paddambailu, Dr.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Hemanath, the Warden of K.V.G. Hostel-Leeladhar and the staff and students of the College, but he stated that it was not a heated exchange of words or a quarrel. The evidence given by PWs. 54, 55 and 56 is referred in paragraph no.27 as their evidence has relevancy for proving the circumstance of conspiracy.
22. PW16, 17, 21, 23, 24, 54, 55, 56, 61, 63 and 64 are the witnesses for establishing conspiracy. None of them supported. Through PW16, the prosecution wanted to establish that accused no.2 asked him to bring a number plate of a vehicle written in Kannada and on his request he met an artist who had a shop by name 'Seema Arts' and got written a number plate containing the registration number 'KA-21-J- 3141' to be fixed on the rear side of the motorbike. The prosecution also wanted to prove through this witness that he was the driver of a pick up vehicle belonging to the first accused and had seen accused no.3 who was working as a writer in the farm house namely Amar Jyoti Farms and had also seen accused no.2 and accused no.4 in that farm house. The prosecution further wanted to prove that PW16 had seen accused no.1 discussing something with accused 2 to 4.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Ex.P.34 is a mahazar written in connection with seizing the number plate, he admitted the signature on the said mahazar but stated that he put his signature in the police station and did not know its contents.
23. PW17 was examined to prove that when he was working at Amar Jyoti Farms, accused no.1 used to visit the farm everyday at 6.00 a.m. and had seen accused no.1 four or five times speaking to accused 2 and 4 about eliminating Ramakrishna. Further aspect sought to be proved was that on 10.04.2011 he went on leave for four days and when he returned on 14.04.2011, at about 10.00 a.m. he saw two persons watching television in a room. When he enquired one Ramanna about them, he told him that those persons were the friends of accused no. 3 and were staying in that room since last night. Then he enquired accused no. 3 to know about those two persons and at that time accused no. 3 told the names of those two persons as Sharan and Bhavanishankar, i.e., accused 5 and 6 respectively, and also told him that they came there last night on a motorcycle in connection with some work at Sullia. The prosecution also wanted to prove from him that accused no.3 was supplying food to accused 5 and 6 using
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 pick up vehicle, that in the evening both of them left that place riding the motorcycle and he saw a number plate written in Kannada being fixed on the rear side of the motorcycle. Both of them returned to the farm house at about 9.30 p.m. At that time he heard them saying that Ramakrishna did not come for walking on that day evening and therefore they would come again on another day. He also saw both them coming to farm house on 28.04.2011, accused no.3 giving them a cover which they kept in the petrol tank pouch and then leaving that place towards Sullia. The very same night PW17 came to know about murder of Ramakrishna. But PW17 has not established all these aspects.
24. PW21 was examined just to prove that he came to know about conspiracy and to that effect he made a statement before the police as per Ex.P.40, but he has not supported.
25. From PW23 and PW24, the prosecution wanted to prove that accused no. 5 met them in the second week of April, 2011 and tried to persuade them that they should admit before the police that they killed Ramakrishna and if they did so, they would be suitably rewarded monetarily and all their court
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 expenses would be borne by him. Then a day after 28.04.2011, they came to know about murder of Ramakrishna. Thereafter accused no.5 met them and told that their mission was over and they should get ready; then accused no.5 took them to Amar Jyoti farm house where accused nos. 2 to 4 were present and that food which was brought in the pick up vehicle was supplied to them. They were shown the place of incident, the house of Ramakrishna and some other places. It was also sought to be proved that they should only disclose the name of accused no.4 saying that the latter asked them to kill Ramakrishna and that they were given advance of Rs.5,000/-. During investigation the police did not believe their involvement. When they were questioned regarding that, they disclosed before the police that they did not kill Ramakrishna and accused nos.2 to 5 told them that they would be given money if they admitted the guilt.
26. PW54 was working as manager of K.V.G. Multipurpose Co-op. Society, Sullia, and he knew the deceased as also accused no.1. Through him the prosecution wanted to establish that whenever accused no.1 used to come to his office, he had seen accused no.1 scolding and blaming
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Ramakrishna for spoiling his life, that accused no. 11 used to tell before him that something should be done, accused no.2 used to come and meet accused no.1 in the latter's chamber in the month of March, 2011, and later on he came to know that accused no.1 conspired with accused nos.2 to 4 and got killed Ramakrishna through accused nos.5 and 6. Even from PW55 and PW56, the prosecution wanted to prove the same aspect. PW56 was working as Accounts Officer in the office of K.V.G. Dental College. If PW55 denied that he was working in the Society, PW56 admitted that the Audit Office of the Dental College was situated in the same building where the office of accused no.1 was situated.
27. PW61 was working as a supplier in a hotel called 'Nitish' being run by PW62. Both of them were examined to prove that accused no.3 used to come to hotel to have food and, a few days before 28.04.2011 accused no.3 had brought accused nos.5 and 6 to the hotel to have food. PW61 denied to have supplied food to accused nos.3, 5 and 6 in the hotel and PW62 has stated that he did not know that the said three accused had come to hotel sometime before 28.04.2011.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017
28. PW63 was working as cashier at Rama Bar and Restaurant which belonged to PW64. They were examined by the prosecution to prove that accused no.3 used to visit the bar, that on 28.04.2011 at 7.30 p.m. accused no. 3 had come to bar with accused nos.5 and 6, and were sitting in front of the cashier's desk and that they left the bar sometime later. The prosecution also wanted to establish from them that very soon after they left the bar, they came to know that Ramakrishna had been killed near Sri Krishna Ayurveda Theraphy Clinic. But these two witnesses have denied to have given statement before the police in this regard.
29. PW14, 15, 16, 25, 50, 51, 68 were examined for proving preparation and these witnesses have not supported.
30. The purpose of examining PW14, 15 and 25 was to prove that accused no.4 met and enquired them whether any person was available for killing Ramakrishna, and that person would be paid Rs.12 lakhs. To this enquiry they said that they did not know anybody and they too were not ready to take up that task. They denied to have given statements to this effect before the police.
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31. According to prosecution, PW16 was the driver of pick up vehicle belonging to the first accused. Through him the prosecution tried to prove that while he was working as driver, accused no.3 was working in Amar Jyoti farm as a writer and accused no.2 as a plumber; that accused no.4 used to visit the farm, that he had seen accused no.1 discussing some matter with accused nos.2 to 4 and that accused no.3 asked him to bring food to the relatives, i.e., accused nos.5 and 6 who had arrived from Managaluru and stayed in the farm house. So far as preparation is concerned the prosecution wanted to prove from this witness that on 11.04.2011, accused no.3 asked him to bring a number plate of the motorcycle written in Kannada and then he visited 'Seema Arts' and got written the number plate containing the registration no. KA-21-J-3141, and paid Rs.100/- to the artist.
32. PW50 was examined to prove that accused no.4 came to Kattekar's Hardware Shop where he was working as a salesman and bought two machetes for a price of Rs.650/-, but he has denied to have sold the machetes and given a statement as per Ex.P.55 before the police.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017
33. PW51 was the proprietor of 'Seema Arts'. The prosecution wanted to prove from him that PW16-Rohit met him and asked to write a number plate of the motorcycle in Kannada numericals and accordingly he gave him a number plate writing the numbers KA-21-J-3141 and received Rs.100/- as his charge. But he denied this aspect and his statement before the police as per Ex.P.56.
34. According to prosecution PW68 is the friend of accused no.1. It was sought to be proved from him that accused no.1 had revealed before him that Ramakrishna was responsible for emergence of differences between him and PW4 in regard to administration of the educational institutions and that on 06.05.2011, the 7th accused telephoned to him and said that second accused was urgently in need of Rs.5 lakhs and that accused no.2 also telephoned to him and requested to give Rs.5 lakhs. Further 7th accused telephoned to him and told that he would meet him on 07.05.2011 and accordingly when the 7th accused went to his house he gave him Rs.5 lakhs. Denying this circumstance, he also denied to have given statement as per Ex.P.71.
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35. There are certain incidental matters which the prosecution wanted to prove through PW26, 57 to 62 and 72.
36. PW26 was examined to prove that he brought the vehicle to the place of incident for shifting the injured Ramakrishna to hospital. He supported this aspect but he was also a witness for inquest which he did not establish.
37. PW57 was working as Supervisor in the medical college hostel mess. He was examined to prove quarrel between accused no.1 and PW4 that had taken place in the month of March, 2011. He denies his knowledge about it and in this regard his statement as per Ex.P.60.
38. PW58 and PW59 were working as cooks at K.V.G. Medical College mess during the period 2008 to 2013. It was sought to be established through them that in the month of March, 2011, PW4 came to the mess and at that time accused no.1 also came there and during the quarrel that took place between them, PW4 scolded accused no.1. It is sought to be proved that during quarrel accused no.1 took the name of deceased Ramakrishna and proclaimed that he would not leave him. But PW58 and 59 denied all these factors and the statements
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 recorded by the police in this regard as per Ex.P.61 and Ex.P.62.
39. PW60 was working as Administrative Superintendent at K.V.G. Medical College. The purpose of examining this witness was to prove quarrel between accused no.1 and PW4 in the month of March, 2011 and accused no.1 uttering at that time that he would not leave Ramakrishna. He did not admit to have given a statement in this regard as per Ex.P.63.
40. PW72 was working as in-charge Principal of the K.V.G. Dental College. He gave evidence that he issued the salary certificate as per Ex.P.78 and Ex.P.79 and the payment voucher at Ex.P.80. He was treated partly hostile and when public prosecutor cross examined him he admitted that Ex.P78 pertained to accused no.2 who was working as an assistant to accused no.1 and as a site supervisor.
41. Many panchanamas or mahazars were drawn and incriminating materials were seized during investigation and in this regard PW31 to 47, 50 to 53, 65 to 67 are the examined witnesses.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017
42. PW8 and PW30 speak about spot panchanama drawn on 29.04.2021 in between 6.30 and 7.30 a.m. PW8 has stated that he himself showed the place of occurrence to the police and then the police drew up a panchanama in the presence of PW30-Ramachandra Bhat and one Umesh. Ex.P.24 is the spot mahazar. PW8 has stated that at that time the police seized broken frame of the spectacles of his father (there were blood stains on the frame), LG mobile set and scrappings of tarred road with and without blood stains. He identified the mobile hand set and the frame of the spectacles marked as per M.O.6 and M.O.7. M.O.8 and 9 are the blood stained and unstained tar scrappings.
43. PW30 also states about spot panchanama drawn in his presence as per Ex.P.24 and seizure of M.O.6 to M.O.9. He has further stated that the place of occurrence is near Krishna Ayurvedic Theraphy situate on the road from Channakeshava Swamy Temple to Junior College and there are bushy plants, K.F.D.C. residential quarters and an electric pole in the surroundings.
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44. PW31 was examined to prove two panchanamas as per Ex.P.45 and P.46. But he did not support the prosecution case except admitting the signatures on the two panchanamas. Ex.P.45 was drawn in connection with PW4 producing xerox copy of a letter containing fourteen pages on 08.05.2011 before the Circle Inspector of Police. Ex.P.46 was drawn on 09.05.2011 for having seized 'supari money' of Rs.2,58,000/- in room no. 4 on the first floor of staff quarters of Dental College as produced by accused no.2 after giving voluntary statement before the police. But even with regard to this panchanama PW31 did not support.
45. PW32 is another witness to Ex.P.45 and he too did not support.
46. PW36 was a witness to panchanama drawn as per Ex.P.46 but he turned hostile.
47. PW33 was examined for proving the panchanama as per Ex.P47 in regard to seizure of Rs.8 lakhs which was kept in a Godrej almirah in the house of accused no.5, a mobile phone belonging to accused no.5, and Rs. 2 lakhs and a mobile phone
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 which were found in the pants' packet of accused no.6. PW33 did not support the prosecution case.
48. PW34 was examined to prove the panchanamas as per Ex.P47 and P48. He failed to establish these two panchanamas. Ex.P48 was drawn in connection with seizure of Rs. 2 lakhs and a mobile phone from accused no.3 at KSRTC bus stand, Mangaluru. He did not support. PW35 who was examined for proving Ex.P.47 and 48 followed the steps of PW34.
49. PW37 and 38 were the witnesses to Ex.P49 drawn in proof of seizing two machetes used for commission of offence. The prosecution tried to establish a circumstance that after the arrest of accused nos.3, 5 and 6, accused no.3 made a disclosure and led the police to Amar Jyoti farm house and then took them to room no.3 in the first floor. There he removed a polythene bag kept below an iron cot and produced two machetes wrapped with old paper. Then accused nos.5 and 6 showed the motorcycle used by them on 28.04.2011. The investigating officer found blood stains on the petrol tank cover
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 and then seized the motorcycle and the cover. But these aspects were not established by these two witnesses.
50. PW.39 and 46 are the witnesses to panchanama-Ex.P.34 which was drawn for having seized pick up vehicle bearing reg. no. KA-21-D-8888 used by accused no.3 for supplying food to accused nos.5 and 6 when they were staying in the farm house. Except admitting their respective signatures, they did not speak in favour of the prosecution.
51. PW40 and 41 are the witnesses to panchanama-Ex.P.50. They admitted their signatures but failed to prove the prosecution case that on 11.05.2011 at 9.30 a.m. the police were able to seize a number plate written in Kannada numerals and the clothes being worn by accused nos.5 and 6 at the time of commission of offence. In this regard the prosecution case is that the accused nos.5 and 6 gave their clothes to accused no.3 who concealed them near a stream situate amidst arecanut plantation at Amar Jyoti farms.
52. PW42 and 43 were supposed to prove panchanama as per Ex.P.51 which was drawn seeing the place where accused no.1 had discussion with accused nos.2 and 3 for eliminating
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Ramakrishna and handing over part of 'supari amount' of Rs.7 lakhs to accused no.2. According to prosecution accused no.1 gave voluntary statement and stated that he would show the place where he had discussions with accused nos.2 and 3. These two witnesses also did not support.
53. Ex.P.52 is the panchanama sought to be established by PW44 and PW45. Except admitting their signatures they did not establish the prosecution case. According to prosecution, accused no.1 gave voluntary statement and disclosed that he had kept the mobile phone on a corner table in the bath room of his house called 'Amarashree' and thereafter the police seized the said mobile phone which contained sim no. '9448515151' based on his disclosure in the voluntary statement.
54. PW47, 52 and 53 were to prove Ex.P.53 in connection with seizing cash of Rs.1,23,000/- produced by accused no.4 after making a disclosure in his voluntary statement. But except admitting their signatures they did not support.
55. Ex.P.54 is the mahazar drawn in the shed situate in front of the farm house belonging to accused no.1. According to
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 prosecution, it was the place shown by accused no.1 where he held discussion with accused nos.2 to 4 for killing Ramakrishna. PW48 and 49 are the witnesses to prove this panchanama but they did not support.
56. PW65 and PW66 are the witnesses examined for proving the panchanama as per Ex.P.69 which was drawn in connection with seizure of cut pieces of Moksh Agarbatti wrapper produced by PW5. But they did not speak in favour of the prosecution.
57. PW67 is a witness to panchanama Ex.P.70 which was drawn in the farm house of accused no.1 for seizing cut pieces of Moksh Agarbatti wrapper. According to prosecution, these were the remaining pieces of Agarbatti wrapper kept in the farm house and they were shown by accused no.3 to the police. But PW67 failed to prove this aspect.
58. There are certain other circumstances to which PW18 to 20, 22, 23, 24, 69 to 71 are the witnesses, but they have not supported.
59. One circumstance figured out during investigation was that PW18 owned a motorcycle bearing reg. no. KA-19-AB-76. Whenever she used to visit her grandmother's house, she was
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 parking the motorcycle in the house of accused no.5 because there was no road to grandmother's house. Accused no.5 used to take the motorbike as he was her relative, and during her one such visit in the month of April, 2011, accused no.5 told her that in the second week of April he would use her motorcycle for four days. Accordingly, he took the motorbike and then brought it back. Again two days after, the 5th accused took the motorbike and when she asked him as to where he had gone, he told her that he had been to Puttur and Sullia on 27.04.2011 and 28.04.2011 on some work. She completely denied this circumstance sought to be established from her and the statement as per Ex.P.37 recorded by the police.
60. PW19 was present with PW7 when the latter received phone call about attack on Ramakrishna near Sri Krishna Ayurvedic Theraphy Clinic and thereafter, he, PW7 and S.H. Sultan Mohiddin (CW24, not examined) went to that place and saw Ramakrishna having fallen down sustaining serious injuries and also PW8-Vallish at that place. They enquired PW8 about the incident. But PW19 denied this circumstance and the statement given by him before the police during the investigation as per Ex.P.38.
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61. PW20 was a student of III Year Engineering at K.V.G. Engineering College, he knew PW4 and deceased Ramakrishna and had seen the first accused. His evidence is that one day in the year 2011, he had been to the house of his friend Deepika and while returning home, he saw Ramakrishna in a pool of blood. He stopped his scooter and enquired PW8-Vallish who was there and came to know that somebody had assaulted Ramakrishna. Immediately he made a call to PW7 and informed about it. Then a pick up vehicle came and took the injured to the hospital. Since he did not fully support the prosecution, he was treated hostile and cross examined to elicit from him that PW8 told him that PW1 and PW9 had seen two persons going in front of their house. He did not admit the suggestion and denied the statement as per Ex.P.39.
62. PW22 is a photographer and knew the deceased. If his evidence is seen, actually he does not establish any circumstance, but the prosecution wanted to prove that he came to know about the incident and about the involvement of all the accused in the commission of crime which took place in the background of enmity that accused no.1 had against the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 deceased. He does not admit the statement said to have been recorded as per Ex.P.41.
63. PW69 was a newspaper distributor at Madikeri besides being a taxi driver. Through him the prosecution sought to prove that on 06.05.2011 at 6.30 p.m. accused no. 7 came to taxi stand and engaged him for going to Mangaluru on the next day morning at 7'o clock and that on 07.05.2011, he picked up accused no.7 from his house and came to Hassan. Accused no.7 alighted from the car at K.R. Puram Extension, Hassan, came back after half an hour and then proceeded towards Mangaluru. On the way when the car was stopped at Kalladka at 2.30 p.m. two to three people came in a pick up jeep and talked with accused no.7. But PW69 has not established this incidental circumstance and he denied to have given statement as per Ex.P.72.
64. PW70 was working as a salesman in K.V.G. Nandini Milk Parlour belonging to K.V.G. Educational Institutions. The prosecution wanted to prove from him that he was working as watchman in the house of the first accused situated at Mangala Devi Nagar, Madikeri. On 06.05.2011, accused no.2 telephoned
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 to his mobile at 4.00 p.m. and told that the mobile telephone of accused no. 7 was switched off and asked him to convey to accused no. 7 to make a call to him, and accordingly he went to the house of accused no. 7 and told him to contact accused no.2. But this witness denied all these circumstances and the statement as per Ex.P.73.
65. PW71 is the wife of first accused and Director of Academy of Liberal Education, Sullia. She has stated that accused no.2 was working as an attender in the institutions, but did not know accused no.3. The purpose of examining PW71 was to prove through her that she issued letters about the employment of accused nos.2 to 4. Those letters are Ex.P.74 to P.76. Though she admitted the signatures, she denied to have issued them and stated further that the police obtained her signatures on blank papers in the police station. It is quite obvious that she being the wife of accused no.1 cannot be expected to support.
66. PW73 was the PWD Engineer who prepared the sketch of the scene of occurrence as per Ex.P.81. He noted in the sketch that at a distance of 20 feet from the place of occurrence there
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 was a streetlight pole, at a distance of 15 feet there was an electric pole and at 50 feet distance, KFDC quarters were there.
67. PW75 was the Regional Transport Officer who inspected Hero Honda Splendor motorcycle with reg. no. KA-21-J-3141 and Mahindra pick up vehicle reg. no. KA-21-D-8888, took pencil prints of chassis nos. of those two vehicles and issued their 'B' extracts. Ex.P.89 is the vehicle condition report and Ex.P.90 and 91 are the 'B' extract copies.
68. PW74 was the doctor who conducted postmortem examination and PW77 was a forensic expert who gave serology report examining the blood stains.
69. PW76, 78 to 87 are the police officers and personnel who have spoken about the role played by each one of them during investigation.
Analysis of Evidence:
70. Ramakrishna met homicidal death; there is no dispute about it and therefore this aspect does not require discussion. As most of the witnesses turned hostile and a few of them partially supported, the evidence as regards investigation part is to be examined. Sri R.B. Deshpande has argued that the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 investigators are interested witnesses and it is not safe to rely upon their evidence. This argument cannot be accepted. There is no rule as such that no reliance can be placed on the evidence given by the police officers. If the investigation appears to have been done honestly, truthfully and impartially, there is no bar for relying on the evidence given by the investigating officers and other police personnel. It is true that the police sometimes, in a zeal to give foolproof touch to their investigation go out of track, like by taking further statements of the witnesses in regard to the investigation made by them. Further statement, which is nothing but a statement under section 161 of Cr.P.C, is to be taken when a witness wants to give some additional information or state something which he had omitted earlier. In many a case it is found that the investigating officer feeds the information collected by him during investigation from other sources to the witnesses and obtain further statements from them to that effect. If the witnesses take ignorance to or deny to have made such further statements, they can not be treated hostile. This is what has happened in this case, especially in regard to PW-8 and PW-9.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 When the prominent witness turn hostile, evidence with regard to investigation must be scrutinized keenly and carefully.
71. As to the value or importance to be attached to the investigation part, we may usefully refer to some rulings of the Supreme Court. In State Govt. of NCT of Delhi Vs. Sunil & Other [2001 SCC (Crime) 248] it is held:
"21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. The official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 could certainly take into account the fact that no other independent person was present at the time of recovery. But is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
(emphasis supplied) In Rizwan Khan Vs. State of Chattisgarh [(2020) 9 SCC 627] it is held:
"11.2. Having gone through the entire evidence on record and the findings recorded by the courts below, we are of the opinion that in the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW3, PW4, PW5, PW7 and PW8. It is true that all the aforesaid witnesses are police officials and two independent witnesses who were panchanama witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross examined by the defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313 CrPC. There is no law that the evidence of police officials, unless supported by independent evidence, is to be discarded and/ or unworthy of acceptance."
(emphasis supplied)
72. PW80 registered FIR as per Ex.P.98 after receiving report made by PW8 as per Ex.P.23. PW83, Pw84 and PW87 are the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 investigators. The evidence of other police personnel does not require discussion as they carried out instructions given to them by the investigators and these aspects are not disputable. PW83 conducted inquest in between '0' and 3.45 hours on 29.04.2011, seized the blood stained clothes, a leather belt and, a pair of shoes and socks of the deceased at that time. He obtained the statements of PW2, PW3, PW10 and PW26. Ex.P.3 is the inquest panchanama. And on 29.04.2011 in between 6.30 AM and 7.30 AM, he conducted spot panchanama as per Ex.P.24, recorded the statements of PW1, PW2 and PW9. On the directions of his superior officer, he handed over investigation to PW-87. After handing over investigation, he recorded statements of some more witnesses and seized a few items on the instructions of PW-87. A few of his further actions need to be referred to here. First one is, PW-5 produced before him cut pieces of 'Moksh' agarbatti packet wrapper that had been sent to him by post. He seized those pieces under a panchanama-Ex.P.69 in the presence of PW-65 and PW-66 and obtained the statement of PW-5. Cut pieces of wrapper are marked as MO.39.
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73. Most important aspect is seizure of MO-40. In this regard PW-83 has deposed that PW-4 himself came to police station on 08.05.2011 and handed over a Xerox letter containing 14 pages. He seized it under panchanama or mahazar as per Ex.P.45. He obtained statements of PW-51 on 20.05.2011 and of PW-12 and PW-13 on 17.06.2011. Another aspect spoken to by him is that accused no. 7 appeared before him on 13.06.2011 having obtained anticipatory bail. He obtained his voluntary statement and released him on bail. When his attention was drawn to the portions of the statements denied to have been given by the witnesses whom he had interrogated, he asserted that, Ex.P.26 and P.26(a) were the statements of PW9; Ex.P.1 was the statement of PW1; Ex.P.17 and P.17(a) were the statements of PW5; Ex.P.19 and P.19(a) were the statements of PW-6; Ex.P.29 was the statement of PW-11; Ex.P.30 was the statement of PW-12; Ex.P.31 was the statement of PW-13, Ex.P-56 was the statement of PW51 and Ex.P.3(a) and P.3(b) were the statements of PW-26.
74. PW-83 has not been discredited in the cross-examination at all. General denial suggestions were given to him, and he refuted them. He has an explanation for not examining PW-2,
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 PW-8 and PW-10 at the time of inquest, the reason is that they were in a state of sorrow being the nearest relatives of the deceased. Though he admitted that he did not try to ascertain the names of the enemies of the deceased during his investigation, this answer does not affect his testimony. There are no reasons as to why his testimony is to be discarded.
75. PW-84 was working as police inspector at DCIB of Dakshina Kannada district. He was stationed at Mangaluru. His evidence shows that he received a credible information that accused no.5-Sharan had kept 'supari money' in his house at Akasha Bhavana, Mangaluru. He passed on this information to his higher officer. On the oral instructions of his higher officer, he secured the panchas, i.e., PW-33 to PW-35, went to the house of accused no.5 at 3.45 pm on 08.05.2011, found accused no.5 being inside the house, and questioned him about supari money. It is his further evidence in this regard that accused no.5 had received the money of Rs.11 lakhs from accused no.1 through accused nos.2, 3 and 4. He told at that time that out of Rs.11 lakhs, Rs.50,000/- had been expended, gave Rs. 2 lakhs to accused no. 6 and had kept the remaining money of Rs.8,50,000/- in the almirah in his house. Then the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 almirah was opened in the presence of panchas. PW-84 has stated that he saw bundles of currency notes of Rs.500/- and Rs.1000/- denominations. He seized totally a sum of Rs.8,50,000/- produced by accused no.5. He also searched the person of accused no.5 and seized two mobile phones from him. Accused No. 6 was also present in the house of accused no.5, and when he was searched, PW-84 found accused no. 6 having Rs.2 lakhs being his share in the supari amount and a mobile phone. Ex.P.47 is the panchanama drawn by PW-84 in connection with seizure of supari money from the possession of accused nos.5 and 6 in the presence of PW-33 to PW-35.
76. PW-84 has also given evidence that on the information given by accused nos.5 and 6 that accused no.3 would be coming to Mangaluru bus stand, he went to bus stand at about 6.30 p.m. on 08.05.2011 with PW-34 and PW-35 and on accused no.3 being identified by accused no.5 at the bus stand, he was caught and enquired. He told at that time that he was working as supervisor in the farm house of accused no.1. He also told that in the bag which he was carrying, he had kept an amount of Rs.2 lakhs, which he had kept with himself after making payment of supari money to accused nos.5 and 6. He
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 said that accused no.1 had given supari amount for causing the death of Ramakrishna. Accused no.3 had also a mobile phone with him. PW-84 seized an amount of Rs.2 lakhs and the mobile phone under mahazar drawn as per Ex.P.48 in the presence of PW-34, PW-35 and PW-78, who was an ASI. M.Os. 17 to 27 are the bundles of currency notes, M.O.27 and 28 are the mobile phones seized from accused no.5; M.Os. 30 and 31 are the bundles of currency notes and M.O.32 is the mobile phone seized from accused no. 6. M.Os. 34 to 36 are the bundles of currency notes and M.O.38 is the mobile phone recovered from accused no.3. PW-84 identified all these material objects. He has stated that he gave a report of recoveries made by him to his higher officer as per Ex.P.101.
77. Cross-examination of PW-84 does not impel to reject his testimony in examination-in-chief. One point argued by the counsel for accused, and also observed by the trial court that the seizure of cash and mobile phones made by PW-84 was not in accordance with Sec. 27 of the Evidence Act and therefore, the seizures can not be acted upon. This argument does not stand. It is not necessary that seizure of incriminating articles must always be preceded by a disclosure made by an accused
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 by giving voluntary or confession statement. Sec. 102 empowers the police officer to recover and seize incriminating materials, and in fact PW-84 has answered in the cross- examination that he acted under Sec. 102 of Cr.P.C. He also stated that before searching the accused, he and his staff subjected themselves to search and this would remove the doubt in his investigation.
78. It is not the case of the defence that PW-84 planted money with accused nos.3, 5 and 6 and thereby it was a camouflaged search. He has testified the presence of PW-34 to PW-36 during the search conducted by him, and his evidence in this regard has not been impeached. He might not have been appointed in writing as an investigating officer, but he acted on the instructions of his superior officer, which is permitted. Looked from any angle, we do not find any reason to reject the evidence given by PW-84. Therefore hostility of panch witnesses hardly makes any impact.
79. PW-87 completed the investigation and filed charge sheet. In regard to investigation conducted by PW-87, it was argued on behalf of the accused that she was not authorized to
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 investigate. This argument is not acceptable for, she was working as Assistant Superintendent of Police, and Sullia was under her jurisdiction. Being a superior police officer, she could exercise powers of a station house officer as envisaged in Sec. 36 of Cr.P.C. Moreover her evidence shows that she was appointed as an investigating officer by her superior officer.
80. Her evidence in chief shows extensive investigation made by her. On 09.05.2011, accused 3, 5 and 6 were brought before her by PW-84 arresting them and he also produced the 'supari money' and mobile handsets seized by him and the mahazars Ex.P.47 and Ex.P.48 on which she put her signature. Then accused nos.3, 5 and 6 gave their voluntary statements. Based on their voluntary statements, she came to know the involvement of accused no.2 and on the very same day i.e., 09.05.2011, she went to staff quarters of K.V.G. Dental College, took accused no.2 to her custody and brought him to police station where he was arrested. As accused no.2 disclosed in his voluntary statement that he would show the place where he had kept his share in the supari amount given by accused no.1, she was able to seize an amount of Rs.2,58,000/-. She has stated that accused no.2 himself led
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 her and the panchas PW-31 and PW-36 to room no. 4 in the first floor of the staff quarters and removed a plastic cover containing bundles of currency notes of Rs.1,000/- and Rs.500/- denominations. He told at that time that he had received Rs.2,60,000/- to his share, and had spent Rs.2,000/-. She also seized two mobile phones. Ex.P.46 is the mahazar drawn at that time in the presence of panchas, she identified the currency notes-M.O.41 to M.O.44, the plastic cover-M.O.45 and two mobile phones-M.O.46 and M.O.47. Ex.P.112 is the portion of voluntary statement of accused no.2 that led to disclosure.
81. She then ordered for tracing accused no.1. He was found at Madikeri. After he was produced before her, she questioned him and obtained his voluntary statement. He disclosed before her the differences between him and PW4. He also disclosed at that time that instigation by Ramakrishna was the reason for differences between him and PW4.
82. As accused no. 3 had disclosed in his statement that he would show the place where the weapons used for killing Ramakrishna and the motorcycle used by accused 5 and 6 had
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 been kept, she secured the panchas i.e., PW-37 and PW-38 and went to 'Amar Jyoti Farms' as led by accused no.3. She also took accused nos.5 and 6 with her. Accused no.3 took her and the panchas to room no. 3 situate on the western side of I floor of the farm house and removed a polythene bag which was kept below an iron cot. He opened the bag and produced two machetes which were wrapped with old newspaper. At that time accused no.3 told that accused nos.5 and 6 handed over the machetes to him after the incident was over. Then accused no.3 brought PW-87 and the panchas to a shed where a motorcycle had been parked and said that it was the motorcycle used by accused nos.5 and 6. She seized the motorcycle bearing reg. no. KA-21-J-3141 along with petrol tank cover containing blood stains. She drew up a mahazar in this regard as per Ex.P.49 in the presence of panchas. M.O.s.10 and 11 are the machetes, M.O.16 is black colour petrol tank cover, M.O.48 is the polythene bag with old newspaper (Udayavani) and M.O.49 is the motorcycle. She identified all these material objects during trial. Ex.P.113 is the portion of voluntary statement of accused no.3 which led to recovery of all these incriminating material objects. Since
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 accused no.3 also disclosed in Ex.P.113 that he would show the place where he had hidden the blood stained clothes of accused nos.5 and 6 and the number plate of the motorcycle written in Kannada numericals, on 11.05.2011, PW-87 secured the panchas PW-40 and PW41 and came to Amar Jyoti Farm house with accused nos.3, 5 and 6. Accused no. 3 took all of them to a place where a water pump had been installed to a stream flowing in the middle of arecanut garden. There he showed a plastic cover pack containing a blood stained white colour shirt with a label "PEENUTS" and a light brown colour pants with small sticker "COMET CASUAL". These clothes belonged to accused no.5 and he identified them at the spot. There was another pair of clothes containing blood stains, a shirt containing the label "SUN VALLEY" and a black shaded jeans pants that belonged to accused no.6 who identified at that time. The plastic cover also contained a number plate written in Kannada numerical. The number written was KA-21-J-3141. She seized all these items under a panchanama Ex.P.50. M.Os. 12 to 15 are the clothes of accused nos.5 and 6 and M.Os. 51 and 52 are the number plate and plastic cover.
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83. The evidence given by PW-87 discloses further that she came to know that in order to threaten PW.5-Leeladhar who was friendly with Ramakrishna, accused nos.3 and 4 had sent cuttings of 'Moksh' agarbatti (incent sticks) cover to PW5, because the name of son of PW-5 is Moksh. Accused no.3 disclosed that he would show the place where he had kept the remaining pieces of the agarbatti cover, and accordingly on 14.05.2011, PW-87 could recover and seize those cuttings at the instance of accused no.3. Those cuttings were kept in a plastic cover under a steel almirah in room no. 2 in the first floor of Amar Jyoti Farm. PW-61 and PW-67 were the panchas who were present at that time. Ex.P.70 is the mahazar drawn in that regard and M.O.53 is the plastic cover with wrapper pieces. Ex.P.114 is portion of voluntary statement of accused no. 3 that led to discovery. Her evidence also discloses accused no.1 being taken to police custody on 26.05.2011, his giving a voluntary statement that he would show the place where he held discussions with accused nos. 2, 3 and 4 in regard to their plan. One such place was at K.V.G. International Public School. PW-42 and PW-43 were the panchas to panchanama drawn as per Ex.P.51. PW-87 has
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 deposed that during that time accused no.1 produced before her xerox copies of minutes of the meeting and memorandum of understanding in connection with division of his family properties. These xerox copies are collectively marked as M.O.54.
84. After the arrest of accused no. 4 on 01.07.2011, his voluntary statement was recorded on 02.0.2011 by PW-87. Her evidence in this regard is that, as he disclosed that he had kept his share of the supari money in his house and would produce the same, he took her, the panchas, PW-47 and PW-52 and the other police staff to his house situate at a place called 'Sanuru padavu' of Karingala village, Bantwala Taluk. PW-87 secured another pancha PW-53 from that village. Thereafter accused no. 4 took entire team to a bed room of his house. On the eastern side of the bed room, there were one box and some clothes. He removed a plastic cover containing cloth covers from which he removed currency notes of Rs.500/- and Rs.1,000/- denominations. He produced total amount of Rs.1,23,000/- before PW-87. She seized them under a mahazar-Ex.P.53. The currency notes seized from accused
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 no.4 was marked M.O.57. Ex.P.116 is the portion of voluntary statement of accused no.4 that led to seizure M.O.57.
85. The rest of the evidence of PW-87 shows further steps and action taken by her and affirmation of statements given by witnesses examined by her. Needless to say that they are all the statements denied to have been given by the witnesses. If her cross examination is read, overall impression that can be gathered is that she has not been discredited. Major part of cross examination lies in the form of suggestions which were all denied by her. However, some answers given by her need to be referred to here as learned counsel for accused commented upon them.
86. She admitted that the Tahasildar of Puttur Taluk held test identification parade and the accused were not identified by the witnesses. This answer does not go against prosecution; we will deal this aspect later. She admitted one suggestion that when she interrogated the family members of the deceased, none of them revealed that there existed differences between the deceased and accused no.1. This answer does not affect her testimony because she refuted another suggestion that
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 accused no.1 was not responsible for the death of the deceased. She could deny this suggestion so firmly only because her investigation revealed involvement of accused no.1. When she was further questioned whether her investigation revealed that the deceased had enemity with anybody else, her answer was that she did not come to know of it, that means her investigation only revealed the hatred that accused no.1 had towards Ramakrishna or in other words, nobody other than accused no.1 hated Ramakrishna.
87. In regard to money seized by her, the suggestion given was that the police department would generally seize the money during elections. This suggestion was denied by PW-87, and the defence further failed to give a suggestion as to which was the election scheduled to be held at that time.
88. According to learned counsel for accused, the clothes seized at the instance of accused no.3 were not the clothes of accused nos.5 and 6 because PW-87 admitted the difference in colours of the clothes. It is true that PW-87 has answered like that, but what she meant saying was that the clothes of accused no.5 and accused no.6 were not of same colour. No
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 inference can be drawn that the seized clothes were not the clothes worn by accused nos.5 and 6 at the time of committing crime. It is not the case of defence that all the incriminating articles were planted to show a camouflaged recovery. It is not demonstrated that PW-87 was enemical towards all the accused and had a particular reason for falsely implicating them. We do not find any good reason to reject her evidence as tainted with interestedness.
89. The evidence given by PW-79 shows that on 09.05.2011 he arrested accused no.1 at Madikeri on the instructions of PW- 87 who had by that time come to know about involvement of accused no.1. This arrest is not disputed. But what learned counsel for accused no.2 argued was that accused no.2 was summoned to police station on 01.05.2011. Accused no.2 went to police station on 01.05.2011, but he was not arrested, he was asked to go home. If his involvement was really there, he would have been arrested on 01.05.2011 itself. There was no progress in investigation till 08.05.2011 and everything was created on 08.05.2011 and 09.05.2011.
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90. In this regard, it may be stated that though major part of investigation appears to have commenced from 08.05.2011, there are no materials to hold against probity in investigation. If accused no.2 was not arrested on 01.05.2011, that means as on that day, materials collected by the investigator might be insufficient to arrest accused no.2. It has come in evidence of PW-79 that accused no.2 tried to commit suicide in the toilet of the police station. It was on 02.05.2011. The suggestion was that police put force on him to admit the guilt. This remained just in a suggestion. Evidence of PW-87 shows the involvement of accused no.2.
91. As it becomes clear that the evidence given by investigating officers is believable, it is to be examined whether the trial court has rightly appreciated the evidence of PW1, 8 and 9. PW8 was partly treated hostile as he did not identify accused 5 and 6 in the court. It is true that his evidence shows that he was not aware of differences between the first accused and his father and the reason for murder of his father. He also did not identify accused nos.5 and 6. But it is a fact that he was an eyewitness to the incident. He was very much present when two persons attacked his father and inflicted such kind of
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 injuries as resulted in death later on. Whatever he has stated as to how his father was attacked at about 7.45 p.m. on 28.04.2011 cannot be disbelieved and the defence also does not dispute his presence at the time of occurrence. But according to prosecution, he saw the faces of accused 5 and 6 and also the weapons that they had brought. He was treated hostile because he stated in the examination in chief that he could not identify the assailants and the weapons. It is true that in Ex.P.23, the report given by PW8 to the police for registration of FIR, he stated that he was able to see the faces of the assailants as there was sufficient light and that he would identify them as also the weapons which they had brought. The spot mahazar Ex.P.24 shows that there was a streetlight pole at 20 feet distance from the place of incident and there was possibility of PW8 being able to see the faces of the assailants. He also did not identify accused 5 and 6 in the jail. It appears that he did not identify them during test identification parade. But in the cross examination by the public prosecutor his clear answer was that he came to know about involvement of accused nos.5 and 6 and also the reason for the killing of his father when the police informed him.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Ex.P.25(a) and 25(b) are the statements which he denied to have given before the police during investigation.
92. If PW-8 did not identify accused nos.5 and 6 and also the weapons in the court during trial, it is not possible to hold that his evidence becomes unreliable. He was a boy of 15 years at the time of incident; when his father was suddenly attacked and inflicted injuries, was it possible for him to keenly observe the faces of the assailants and the weapons in that state of fright even though there was streetlight. Chances of PW8 being able or unable to see the assailants was 50:50. If for this reason he answered in the cross examination that he came to know from the police that accused 5 and 6 were the persons who attacked his father and about the reason for the incident, nothing importance can be given to it and in all probability the police must have informed him. This could be the reason for his being not able to identify accused no.5 and 6 during test identification parade and also in the court during trial. In our opinion it was his honest and natural answer. It is true that in Ex.P.23 it is written that he had seen the assailants and would identify them. We have to state in this regard that the station house writer might have instructed him to write like that. We
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 have to draw inference like this. Because PW-8 was a student of High School; his age was 15 years at that time. He could not have drafted the complaint without the assistance of station house writer. This was quite natural. Therefore as we have observed above, this was a folly of that police. If the investigating officer informed him about accused 5 and 6, and the motive for the incident and to that effect, his further statement was obtained by the investigating officer, his answer in the cross examination that he came to know of all these aspects from the police is to be accepted. It was not at all necessary for the police to have obtained his further statements in that manner. Therefore partial hostility is not a factor to be considered seriously.
93. The trial court has given a finding that Ex.P.23 does not contain any information about conspiracy. This is an erroneous finding of the trial court. Ex.P.23 was the report given by PW8 based on which FIR was registered. Motive was unravelled during investigation, PW8 did not have any information about the motive when he went to police station on 28.04.2011. Mentioning nothing about motive in Ex.P.23 should not have influenced the trial court to disbelieve the testimony of PW8
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 regarding motive. The evidence of PW8 only shows that he was an eyewitness to the incident, nothing more. Even it is not the case of the defence that he was not an eyewitness. If he did not speak with regard to further statement, no inference can be drawn that he is a hostile witness. In our opinion, he has spoken clearly what he knew and denied what he did not know.
94. The trial court has observed that the complaint (Ex.P.23) does not contain any allegation against the accused regarding threat given to PW5 and his family members. This is yet another wrong finding. If the threat that had been given to PW5 came to surface during investigation, how was it possible that PW-8 should have mentioned about it in Ex.P.23.
95. PW1 and PW9 are not the eyewitnesses to the incident. The prosecution papers reveal that when they were inside the house, they heard a shriek which made them to come out of the house and see two persons running away. PW1 turned hostile completely, however from the evidence of PW9, it can be clearly inferred that PW1 was also very much present and went to the place of incident hearing the shouting voice. Evidence of PW73, the PWD Engineer who prepared the sketch
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 of scene of occurrence as per Ex.P.81 shows that KFDC quarters in which PW9 was living is situate at a distance of 50 feet from the place of incident. The distance being short, PW1 and PW9 could hear the shouting voice. PW9 has clearly stated in the examination in chief that when he was in the quarters with PW1 on 28.04.2011, both of them heard a shout near Krishna Ayurvedic Theraphy Clinic and they came out of the house. He asked PW1 to see who was going there and he went to the place of incident where he saw one person having fallen down in a pool of blood sustaining injuries. One person was standing near the injured and he said that he was the son of the injured person and also revealed the name of the injured as Ramakrishna, who was still alive at that time. That person was PW8 and he told PW9 that two persons came to that place and severely assaulted his father with weapons. Because PW9 stated about only one person and failed to identify accused nos.5 and 6, he was treated hostile partly and subjected to cross examination.
96. If the entire evidence of PW9 is read, two inferences can be drawn, firstly that PW1 gave false evidence before the court by turning hostile. It is a fact that PW9 testifies the presence
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 of PW1 at that time with him. Secondly, both PW1 and PW9 could not have seen the faces of accused nos.5 and 6. PW-9 asserts to have seen only one person. This was the reason why he denied to have given statements as per Ex.P.26 and 26(a) about two persons. He could not have seen the faces of the assailants. And if he did not testify as regards the investigation part found in the further statement which he denied to have given as per Ex.P.26, 26(a) and P.27, no adverse inference can be drawn against PW9. It was not necessary for the investigating officer to obtain his further statement as per Ex.P.27 regarding the investigation.
97. As PW8 did not identify the accused nos.5 and 6, it is to be examined whether the circumstances which the prosecution has brought out would connect all the accused in commission of crime. The important circumstances to be proved are (i) motive, (ii) seizure of incriminating materials, and (iii) FSL report. The circumstance of motive takes into its hold the preparations made by the accused and other attending circumstances.
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98. We digress for a moment to deal with the nature of evidence to be placed before the court whenever the prosecution has to prove the circumstances to establish its case. In this context, a decision of the Supreme Court in the case of M.G. Agarwal Vs. State of Maharashtra (AIR 1963 SC 200), may be relied on. The following is the observation in para no.18.
"18. There is another point of law which must be considered before dealing with the evidence in this case. The prosecution case against accused No.1 rests on circumstantial evidence. The main charge of conspiracy under section 120-B is sought to be established by the alleged conduct of the conspirators and so far as accused No.1 is concerned, that rests on circumstantial evidence alone. It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons' conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If, the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Courts has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated."
(emphasis supplied) That means while appreciating evidence, it is not necessary that every circumstance is to be proved beyond reasonable doubt. Primary or basic evidence suffices and it must be proved in the ordinary way. We are compelled to make an observation here. While dealing with appeals either against acquittal or conviction judgements, we have seen some trial court judges referring to evidence of each witness and giving a finding whether prosecution case is proved beyond reasonable doubt or not through that witness. This, we opine, a wrong method of appreciation of evidence. Only after collation and analysis of entire evidence, i.e., both oral and documentary, it must be examined whether overall inference leads to proof
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 beyond reasonable doubt. If primary evidence in regard to one circumstance is not established, there is a break in chain of circumstances. Therefore what has to be examined now is whether the prosecution has provided basic proof with regard to every circumstance.
99. Harking back, the first circumstance to be examined is motive. The prosecution has come up with a case that management of a number of educational institutions founded by the father of accused no.1 and PW4 were partitioned between them and the deceased played a vital role in PW4 getting a major share. Also a decision was taken that the engineering college which fell to the share of accused no.1 should be shifted to another place and accused no.1 should be given Rs.25 crore. Rs.12 crore had been paid to accused no.1 and in regard to payment of the balance, accused no.1 suspected that deceased was an obstacle and he was giving wrong advice to PW4.
100. In paragraph no. 21 we have referred to the witnesses who were examined to establish the motive. The testimony of PW2 gives some inkling to the motive; he has stated that his
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 brother i.e., Ramakrishna himself had told him about differences between him and accused no.1. Furthermore, there is no better witness than PW4 who can speak about the motive. Though other witnesses mentioned above have turned hostile, and PW4 too has turned hostile to some extent, it is possible to draw certain inferences about the motive and the reason for PW4 not supporting the prosecution case. PW4 does not deny the partition between him and accused no.1, he also does not deny the decision taken to shift the engineering college and Rs.25 crore to be given to accused no.1 for developing the engineering college at another place. But he denied certain facts such as differences between him and PW4, the dissatisfaction that accused no.1 carried as he did not get the management of the medical college in the partition, the deceased being responsible for loosing the medical college to his share and accused no.1 subjecting the deceased to insultation and humiliation in front of the staff of the institutions. It is also the case of the prosecution that PW4 had written a letter to his father complaining against accused no.1. He denied all the suggestions given to him in this regard and also the statement made before the police as per Ex.P.15(b).
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 When xerox copy of the letter purportedly handed over by him to the police was confronted, he denied that and when he was asked to identify the signature on that letter, instead of admitting or denying it, his answer was that the signature on the xerox copy resembled his signature. MO40 is the letter which according to prosecution PW4 handed over to the investigating officer during investigation. In this context we refer to evidence of PW-83, the police inspector who seized MO-40.
101. PW-83 has stated that PW-4 came to police station and handed over xerox copy of a 14 page letter to him and he seized it by drawing a panchanama as per Ex.P.45 and subjected it to P.F. No. 32/2011. PW-83 has not at all been cross examined by the defence on this aspect, that means handing over of M.O.40 to PW-83 by PW-4 remained unchallenged. For this reason total denial stand of PW-4 can not be believed, inference is that PW-4 handed over copy of the letter which he had written to his father to PW-83.
102. Trial court should have read M.O.40 and assessed the evidence of PW-83 and PW-4 together. If we read M.O.40, two
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 aspects become clear. Firstly there were differences between the brothers in regard to division of properties and educational institutions. And secondly PW-4 brought to the notice of his father that accused no.1 had insulted the deceased and staff of the college (found in page no. 7 of the letter) and, had once threatened the deceased that he would shed his blood. The threatening sentences found in page no. 9 of the letter is extracted here.
"PÉ.«.f ªÉÄrPÀ¯ï PÁ¯ÉÃf£À°è DqÀ½vÁ¢üPÁjAiÀiÁV PÁAiÀÄ𠤪Àð»¸ÀÄwÛgÀĪÀ gÁªÀÄPÀȵÀÚgÀ£ÀÄß qÁ: gÉÃtÄPÁ ¥À¸æ ÁzÀ£ÄÀ ªÀÄ£À §AzÀvÉ ¤A¢¹ ¨ÉzÀjPÉAiÉÆrØgÀÄvÁÛ£É ºÁUÀÄ ¤Ã£ÀÄ AiÀiÁgÀÄ? E°èAzÀ £Àr JAzÀÄ ¨ÉzÀj¹ Paediatric Inspection ¢ªÀ¸À JzÀÄgÀÄ §AzÀÄ ¤AvÀÄ zÀÄgÀÄUÀÄnÖ wgÀÄVgÀĪÀÅzÀÄ ªÀÄvÀÄÛ E£ÀÄß ªÀÄÄAzÉ §AzÀgÉ ¸ÀPÀð¯ï ºÀwÛgÀ J¼ÉzÀÄ ºÁQ §rAiÀÄĪÀÅzÁVAiÀÄÄ, gÀPÛÀ ZÉ®ÄèªÅÀ zÁVAiÀÄÆ ºÉýgÀĪÀ£ÀAvÉ. EzÀjAzÁV ªÀÄ£À£ÉÆAzÀÄ gÁªÀÄPÀȵÀgÚ ÄÀ vÀªÄÀ ä ºÀÄzÉU Ý É gÁf£ÁªÉĬÄvÀÄÛ vÉgÀ½gÀÄvÁÛgÉ. F §UÉÎ ¤ªÀÄUÀÆ w½¹gÀÄvÁÛgÉ........"
(underlining by us) The extracted sentences indicate that accused no.1 hated the deceased and had given life threat to him. M.O.40 provides ample proof for the circumstance of motive. Further inference that can be drawn is that PW-4 did make a statement before the investigating officer as per Ex.P.16 regarding the reasons
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 for accused no.1 developing hatred towards the deceased, and his oral evidence in this regard was false.
103. The further case of prosecution is that once there was a quarrel between PW4 and accused no.1 relating to a matter pertaining to the college mess. Attention of PW4 was drawn to this quarrel during cross examination by the public prosecutor and at that time he admitted that there had taken place exchange of words between them although he denied the suggestion that it was a heated exchange of words. PW-58, PW-59 and PW-60 are the witnesses examined to testify the quarrel. Although these witnesses turned hostile, because of admission given by PW4 about exchange of words and, presence of staff of the college and some others at that time, an inference can be drawn that both of them might have quarreled or had some discussion in regard to involvement of the deceased. It can also be said that PW-58 to PW-60 knew this quarrel being present at that time and they turned hostile intentionally.
104. It can be demonstrated very well the reason why PW4 did not fully support the prosecution case. It is his clear admission
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 that his sister Govardhini had filed a suit at Madikeri court in relation to property disputes and in the said suit, accused no.1 and PW4 were the defendants. The suit was filed after the incident and they engaged a common lawyer for defending them. A suggestion was given to him that because of this reason he decided not to depose against his brother. He might have denied the suggestion, but it is not impossible to draw an inference that because of this subsequent development, he might have decided not to depose against his brother.
105. Another contradictory stand of PW4 can be mentioned here to infer his intention to turn hostile partly. The deceased was working under PW4 as an administrator of the medical college. Soon after attack on the deceased, PW4was informed of the same by PW7. He should have been informed obviously. In the examination in chief he has stated that he came to know about the incident and immediately telephoned to his driver Haneef to go to the spot and then he went to the hospital. According to prosecution the name of the driver was Abdul Raheman and therefore a suggestion was given to him that as soon as he came to know of the incident, he asked his driver Abdul Raheman to go to Ambetadka, the place where the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 incident had occurred. He denied that he asked his driver Abdul Raheman. Here the name of the driver is not important, what is important is his asking the driver to go to the spot. If he denied that he gave a statement before the police to that extent it is nothing but a falsehood and therefore a clear inference can be drawn that PW4 did not want to depose about the motive behind the incident. His partly turning hostile was intentional. PW-54, PW-55 and PW-56 are the other witnesses examined for proving motive as in their presence accused no.1 had scolded the deceased and used to say that something should be done to him. These witnesses have not supported, but we do not find any reason to ignore the testimony of the investigating officer, PW-87 who has affirmed that PW-54, PW- 55 and PW-56 did give statements before her during their investigation that they had seen accused no.1 scolding the deceased.
106. PW-10 is the wife of deceased. Nobody has disputed the fact that the deceased had resigned from the post of Principal of K.V.G. Polytechnic, and later PW-4 appointed him as Administrator of the medical college. PW-10 being the wife of deceased must be aware of the reasons for her husband's
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 resignation. If she deposed that she did not know the reason, that answer cannot be believed. For the same reason it can be further inferred that she knew the differences between accused no.1 and her husband, and about the threat given by accused no.1 to her husband. In this view, her statement, Ex.P.28 duly proved through the investigating officer becomes admissible.
107. PW-6, PW-7 and PW-11 to PW-13 are the relatives of accused no.1 and their turning hostile is quite obvious; their denial statements show their interestedness in accused no.1. The way PW-6 has given answers itself demonstrates that she is untruthful, her strong determination to deviate from earlier statements. But so far as PW-5 is concerned, there is a strong reason for his turning hostile. It appears that PW-5 and the deceased were very close; he was working as Administrator of K.V.G. Ayurvedic Medical College. Though in the examination in chief he denied his knowledge about differences between accused no.1 and the deceased, in the cross-examination by public prosecutor he admitted a suggestion that a quarrel had taken place between accused no.1 and the deceased in regard to a matter relating to college mess. He denied the other suggestion as regards threat given to the deceased at that time
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 by accused no.1. The rest of his evidence taking complete ignorance of the prosecution case appears to be owing to threat signal given to him. The name of the son of PW-5 is 'Moksh'. His wife received a postal cover on 23.04.2011. In that postal cover there were pieces of the wrapper of the Agarbatti packet on which the name 'Moksh' was printed. The seizure of cut pieces of the wrapper at two places stands proved from the evidence of the concerned investigation officers whose evidence is already referred to. PW-5 might have denied that he himself handed over the wrapper pieces, but it is a false answer. This circumstance clearly indicates that because of this threat, PW-5 might have deposed against prosecution. The wife of PW5 might have received the postal cover on 23.04.2011, i.e., five days before the occurrence of incident. The trial court has commented that this is irrelevant. This reason cannot be accepted. The date is not important. Because, PW5 continued to work in the same institutions when he was summoned to the court to depose, overwhelmed by the threat signal and his employment in the institution under the management of accused no.1, he might have decided not to support the prosecution.
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108. The next two connected circumstances are conspiracy and the preparation. As discussed above no witnesses has supported. Direct evidence to prove conspiracy is seldom available and therefore the established principle is that inferences are to be drawn from the attending circumstances. There must be evidence indicating the approximate time of commencement of conspiracy. The conspiracy must have continued till the accomplishment of the act. It is held by the Hon'ble Supreme Court in the case of Mohd. Khalid V. State of W.B. [(2002) 7 SCC 334] that:
"24. Conspiracies are not hatched in the open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence.
25. In Kehar Singh v. State (Delhi Admn.), (AIR at p. 1954) this Court observed (SCC pp. 732-33, para 275) "275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of the two persons is necessary. Nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
Conspiracy can be proved by circumstances and other materials.
To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent or unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any unlawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
The case put forward is that accused no.1 had discussions with his employees, i.e. accused nos.2 to 4, and then engaged accused nos.5 and 6. Firstly whether accused nos.2 to 4 were working under accused no.1 or not, is to be examined. PW71 is
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 the main witness examined to prove this aspect. She being the wife of accused no.1 turned hostile obviously. She was the director of Academy of Liberal Education, Sullia. In the examination in chief she denied her acquaintance with accused nos.3 and 4, although she stated that she knew accused no.2 who was working as an attender in their institutions. She admitted her signatures on three documents Ex.P.74 to 76, but denied to have given those documents to police. Though she stated that the police obtained her signatures on the documents in the police station, without any hesitation, it can be stated that her answer is nothing but falsehood. Ex.P.74 is a letter written by her to the police circle inspector stating that accused no.2-Manoj Rai was working as the assistant of accused no.1 and as a site supervisor. Ex.P.75 is a letter in regard to accused no.3-Nagesh who was working as writer in their Amar Jyoti Farms and Ex.P.76 was another letter issued by her to the police inspector stating that accused no.4 was a construction worker on daily wages in the institutions of which she was a director. These letters cannot be ignored and they testify the fact that accused nos.2 to 4 were all known to accused no.1.
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109. PW-72 has also given evidence that accused no.2 was working in the Academy of Liberal Education for which accused no.1 was the General Secretary. Ex.P.78 is the salary certificate of accused no.2 issued by PW-72 in the capacity of in-charge Principal of Dental College. This evidence fortifies Ex.P.74. As it becomes clear that accused nos.2 to 4 were known to accused no.1, the next aspect to be examined is whether there is evidence for the conspiracy.
110. Since conspiracy gets revealed only during investigation, the evidence of the investigating officers must be first considered. We have already held that the investigating officers' evidence is believable. And therefore, from the evidence of PW-87, it is forthcoming that accused nos.3, 5 and 6 gave confession or voluntary statements before her. Their statements disclosed that accused no.1 had hatched conspiracy with them. After getting to know the information from their voluntary statements, PW-87 proceeded further to ascertain related circumstances. It is to be noted here that unless any one of the accused gives information about conspiracy it does come to light; the investigating officer cannot be expected to have clairvoyance; therefore such a statement by the accused
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 is a disclosure of fact within the meaning of Section 27 of the Evidence Act. It is necessary to mention here that confession or voluntary statement need not always lead to recovering concealed incriminating materials. The disclosure thus made by accused nos. 3, 5 and 6 is also a disclosure of fact, and it gets fortified if other corroborative evidence is available. Applicable to this context, we place reliance on a judgment of the Supreme Court in the case of Mehboob Ali and another Vs. State of Rajasthan (2016) 14 SCC 640. In paragraph no. 15 it is held as below:
"15. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz and other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not to the knowledge of the police. The statement of both the accused has led to discovery of fact and arrest of co-accused not known to the police. They identified him and ultimately statements have led to unearthing the racket of use of fake currency notes. Thus the information furnished by the aforesaid accused persons vide information memos is clearly admissible which has led to the identification and arrest of accused Anju Ali and as already stated from possession of Anju Ali fake currency notes had been recovered. As per information furnished by accused Mehboob and Firoz vide memos Exts.P-41 and P-42, the fact has been discovered by police as to the involvement of accused Anju Ali which was not to the knowledge of the police.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Police was not aware of accused Anju Ali as well as the fact that he was dealing with fake currency notes which were recovered from him. Thus the statement of the aforesaid accused Mehboob and Firoz is clearly saved by Section 27 of the Evidence Act. The embargo put by Section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving complicity of the other accused persons and the entire chain of circumstances clearly make out that the accused acted in conspiracy as found by the trial court as well as the High Court.
(emphasis supplied) Examined whether any corroboration is available, the first one is ascertainment of places where accused no.1 held meetings with accused nos.2 to 4. PW-87 has deposed that accused no.1 himself showed those places and the other accused also showed the places. If at all for any reason the sentences in their voluntary statements can not be used against accused nos.2 to 4 because of bar contained in Section 26 of the Evidence Act, nevertheless the unimpeached testimony of the investigation officers stands. Ex.P.51 is the panchanama drawn by PW-87 in the presence of PW-42 and PW-43 at K.V.G. International Public School seeing the place of meeting shown by accused no.1. The hostile evidence of PW-42 and PW-43
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 does not matter. Ex.P.54 is another panchanama drawn in the presence of PW-48 and PW-49 at a place i.e., a shed in front of the farm house belonging to accused no.1. This was another place where accused no.1 held discussion with accused nos.2 to 4 for killing Ramakrishna. Again the hostile evidence of PW-48 and PW-49 does not assume significance. Therefore ample evidence is available that accused nos.1 to 4 met and held discussions.
111. PW-61 to PW-64 may have resiled from their statements, Ex.P.65 to Ex.P.68 made before the investigating officer, but those statements, which are to be accepted inspite of their hostility towards prosecution, throw light that accused no.3 had taken accused nos.5 and 6 to the hotels, and more particularly all these three accused visited Hotel Rama on 28.04.2011 soon before occurrence of incident. The duly proved statements of these witnesses is additional factor to infer conspiracy.
112. The preparation made by accused nos.1 to 4 has been unfolded. The witnesses examined for proving preparation turned hostile, yet their hostile evidence does not have negative impact on the prosecution case. The evidence of
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 police officer in this regard is believable. The preparations unravelled during investigation is like this. Accused nos.1 to 4 searched for hired killers. PW-14, 15 and 25 were contacted and enquired by accused no.4 about availability of anybody being ready to take up the task of killing Ramakrishna. As they did not agree, accused no.2 engaged accused nos.5 and 6.
Accused no.5 came to Sullia on 27.04.2011 riding the motorcycle belonging to PW-18. There is believable evidence which shows that accused nos.5 and 6 were lodged in the farm house and they used to be supplied food in the pick up van which was seized. There is no reason to discard the evidence of the investigating officer in this regard. The number plate of the motorcycle was also changed, PW-16 would meet PW-51 and ask him to write a number plate in Kannada numerical.
They may have not supported but their evidence is nothing but falsehood. Then accused no.4 would buy two machetes from the hardware shop of PW-50. Evidence in this regard is believable. These are the supporting factors for conspiracy.
113. There is another important aspect which can be deciphered from the evidence of PW-23 and 24. They too have turned hostile, notwithstanding that, what can be discerned is
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 that accused no.5 met PW-23 in the second week of April, 2011 and told him about the offer given to him. Accused no.5 told him that they would be killing Ramakrishna, and whether he was ready to admit the guilt and if he did so, he would be suitably rewarded monetarily and all the court expenses would be met. Accused no.5 also enquired PW-24 about availability of another boy. PW-24 agreed for it and then contacted PW-23.
Then after 28.04.2011, PW-23 and PW-24 were brought to farm house and lodged there. They were shown the place of incident, the house of the deceased and the college. That means they were fed with information, but ultimately the investigating officer came to know about their non involvement and therefore they were shown as chargesheet witnesses. This is an important factor which throws light on how the accused nos.1 to 4 planned to implement the object of their conspiracy.
The evidence in regard to preparation made by them not only strengthens the other part of evidence pointing to conspiracy but also provides supplementary evidence for motive. It is impossible to obtain minute details, rule of prudence is to be applied to draw inferences as it is the best test. The conclusion to be drawn therefore is this: accused no.1 first conspired with
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 accused nos.2 to 4; probably in the month of March, 2011, they conceived their plan and it continued till Ramakrishna was killed on 28.04.2011. Accused nos.5 and 6 were not part of conspiracy at the inception, once they agreed to attack Ramakrishna with the sole object of killing him, they also became members of conspiracy. The evidence shows that only after coming to know the background they gave their consent.
Therefore there was meeting of minds of accused nos.1 to 6.
In this view, the circumstances of conspiracy also stands proved from the primary evidence provided by the prosecution.
114. The third circumstance is seizures and recoveries made by the investigating officers. The oral evidence of the witnesses is already referred to. Except the testimonies of police officers, there is no corroboration from independent witnesses. The evidence of investigating officers do very well prove the seizure of supari money from the possession of each of accused nos.2 to 6, the seizure of machetes, blood stained clothes of the accused, the number plate of the motorcycle and the cut wrapper pieces of 'Moksh' agarabatti pack. The seizures made by PW-84 was not based on voluntary statements, but his evidence discloses that he had been
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 instructed by his superior police officer to search and seize, which is permissible under Sec. 102 of Cr.P.C. The comment made by the trial court that PW-84 was not authorized to conduct investigation is another instance of non application of mind. The trial court has also observed that PW-84 was working in Income Tax Department and the information he received was about illgotten income of accused nos.5 and 6. It is wondering how such an observation could be made without any basis. His clear evidence is that he conducted search when he was working as Police Inspector at DCIB (District Crime Investigation Bureau) of Dakshina Kannada District.
115. The trial court has made an observation that the clothes of accused nos.5 and 6 were not seized on the basis of their voluntary statements and therefore the seizure of clothes is not believable and therefore the seizure of clothes is not believable.
This is another instance of non-application of mind by the trial court to the evidence. The evidence brought on record is that accused nos.5 and 6, handed over their blood stained clothes and the weapons to accused no.3 who thereafter concealed them. The recovery of clothes could be made only at the instance of accused no.3. It has come in evidence that at the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 time of this recovery accused nos.5 and 6 were also present.
The testimony of PW-87 in regard to seizure panchanamas drawn by her stands unblemished despite lack of support from panch witnesses. Apposite to this context we place reliance on a judgment of Supreme Court in the case of Mallikarjun and others Vs. State of Karnataka [(2019) 8 SCC 359] where it is held in paragraph no. 23 as under:
"23. As pointed out earlier, based on the disclosure statement of Accused 1, MO 1 dagger which was kept hidden in the haystack of fodder in the loft of the cattle shed behind the house of Accused 1 had been seized under Ext.P-9 panchnama in the presence of panch witnesses PW 8 Chandrappa and PW 9 Mahadevappa Needgera. The said panch witnesses have not supported the prosecution case and turned hostile. MO 2 dagger and MO 3 handle of the axe were recovered from the scene of occurrence under Ext.P-7 spot panchanama. On behalf of the accused, the learned Senior Counsel contended that the evidence of PW 17 PSI as to the recovery of MO 1 dagger at the behest of Accused 1 is doubtful and when PWs 8 and 9 have turned hostile, no weight could be attached to the alleged recovery of MO 1 dagger. There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the investigating officer can be relied upon to prove the recovery even when the panch witnesses turned hostile, In Rameshbhai
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Mohanbhai Koli V. State of Gujarat, it was held as under: (SCC pp. 121-22, paras 33-35).
"33. In Modan Singh V. State of Rajasthan it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra.
34. In Anter Singh V. State of Rajasthan, it was further held that: (SCC p. 661, para 10) '10. ... even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.
35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh cae.)"
PW 17 PSI has clearly spoken about the recovery of MO 1 dagger at the behest of Accused 1 and MO 2 dagger and MO 3 handle of the axe from the scene of occurrence and his evidence cannot be discarded merely because panch witnesses have turned hostile."
(emphasis supplied)
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116. The next circumstance to be examined is whether the report given by PW-77 connects the accused to the crime. PW-77 was a Scientific Officer at Regional Forensic Science Laboratory at Mangalore. Her deposition is that having received the articles in sealed packs on 10.06.2011 in relation to Crime No. 66/2011 of Sullia Police Station, she subjected the same to examination. The articles sent to the laboratory were, a shirt, pants, a belt, a pair of shoes and socks, road surface scrapings with and without blood stains, the clothes of accused nos.5 and 6, the weapons and petrol tank cover. The shirt, pants, belt, shoes and socks belonged to the deceased. Road scrapings were collected at the time of conducting spot panchanama. The other pack contained the articles such as two shirts with labels 'Peenuts' and 'Sun Valley', two pants one being of light brown colour with the lable 'Comet Casual' and another jeans pant containing the sticker 'Racing'. These clothes belonged to accused nos.5 and 6. She also examined two machetes and a petrol tank cover. The serology test conducted on the blood stains found in them confirmed the presence of 'O' group human blood in all the items except a few. Her clear evidence is, in the items marked with letters 'D'
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 and 'H', i.e., the road scrappings with blood stains and the cotton used for collecting blood stains, the features of blood had been destroyed and therefore she could not detect the origin of blood and its group. She also could not determine the blood group in article No. B1 i.e., belt. But her report confirmed the presence of 'O' group human blood in all the items except item 'E' which was a 'controlled road scrapings' without blood stains. Ex.P.92 and Ex.P.94 are her reports. Ex.P.93 is the seal of laboratory. She identified her signature on the reports.
117. One main suggestion given to her in the cross examination was that the report would be incomplete if there was no mention of 'Rh' factor as positive or negative. She did not agree this suggestion. It may be noted here that before giving such a suggestion, it was elicited from her that fresh blood sample was necessary for correctly determining 'Rh' factor. Therefore if she did not mention 'Rh' factor in the report, it cannot be said that her report was incomplete. Her testimony is believable.
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118. The testimony of PW-74, the doctor who conducted the postmortem examination finds relevancy here. His evidence is that the blood group of the deceased was 'O+'. And on 11.05.2011, he was asked by PW-87 to collect the blood samples of accused nos.5 and 6 and give a report about their blood groups. When he conducted the test, he found that the blood group of accused no.5 was 'A+' and that of accused No. 6 was 'O(-)'. Ex.P.87 and P.88 are the out patient slips of accused nos.5 and 6 respectively.
119. The evidence given by PW-74 is an answer to the argument of Sri R.B. Deshpande that the evidence of PW-77 cannot be accepted because the prosecution failed to prove the blood samples of accused nos.5 and 6. Now if the entire evidence of PW-74 and 77 is put to analysis, firstly it can be said that both the witnesses have not been discredited at all in the cross-examination and secondly that their evidence clearly points to the involvement of accused nos.5 and 6 in attacking and killing Ramakrishna. This circumstance therefore is also proved.
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120. As we have found that there is clinching primary evidence in proof of the circumstances that the prosecution was to prove, in order to further strengthen the independent evidence thus available in respect of each circumstance, we may refer to Section 30 of the Indian Evidence Act. This Section reads as below:
"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.-
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."
121. The ingredients of the section are; (1) more persons than one should be jointly tried for the same offence; (2) confession should have been given by one of such persons; (3) that confession must affect himself and some other of such persons; (4) the confession must be proved. If all the ingredients are proved, the court may take into consideration such confession not only against the other person implicated by the person who
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 has given confession but also against him. Illustration (a) to this Section explains the meaning of Section 30 very clearly. The illustration is extracted here.
"(a) A and B are jointly tried for the murder of C. It is proved tht A said - "B and I murdered C". The Court may consider the effect of this confession as against B."
122. Section 30 speaks about confession given by one accused against another. What is this confession? The simple meaning of confession is admitting guilt. It may be extra judicial confession, or a confession made before the police officer or a confession made before the Magistrate u/s 164 of The Code of Criminal Procedure.
123. Section 25 of the Indian Evidence Act is a clear bar for proving confession made by an accused to a police officer. Section 26 states that confession made by a person while being in the custody of a police officer cannot be proved against him; but if a confession has been made in the immediate presence of Magistrate, it can be proved.
124. Section 27 is an exception to Section 26. This section permits proving discovery of a fact disclosed by an accused in his confession statement before the police. The fact disclosed
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 must relate to distinct fact which a police officer comes to know only from the confession statement. That means till then, the police officer should not have had the information of fact disclosed in the confession statement.
125. Section 30 does not state that only a particular type of confession can be considered by the Court if it is proved. Therefore all types of confessions as mentioned above can be considered provided other ingredients of Section 30 are satisfied. Thus seen even though there is a clear bar under Section 25 of the Indian Evidence Act, the confession made by one accused before the investigating officer can be used against the other accused. We now refer to some of the decided cases on this point.
126. A full bench decision of Madras High Court in the case of Athappa Goundan & Others Vs. Emperor (AIR 1937 MADRAS 618) holds that confession under Section 27 can be taken into consideration under Section 30 of the Indian Evidence Act. This observation is found in page no.629, the relevant paragraph reads as below:
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 "Upon the second question referred, in my view, so much of the statement set out in Question 1, as is admissible against accused 1, can be taken into consideration as against accused
2. I see no reason for drawing any distinction between the confession in S. 27 and the confession which cannot be proved at all under S.25, and under S.26 only when is made in the immediate presence of a Magistrate or a confession made in Court or to a member of the public. There is nothing in the section which restricts the confession to one recorded before a Magistrate. On the other hand, Illustration A. to S.30 suggests that the section contemplates "the taking into consideration" of a confession to an ordinary witness. It follows therefore that all such confessions when the accused are being tried jointly for the same offence when made by one of them affecting himself and another or others of the accused, may be taken into consideration as against the other of others under S.30, Evidence Act. In support of this view there are 31 Mad. 127, 50 Bom. 683 and 54 Mad. 75. I would therefore answer this question in the affirmative. The question of whether the same considerations apply to accused 3 does not arise as all references to her were deleted by the trial Court and I am only dealing with such part of the statement as was admitted. My answer to Question 1 is that the following statement is admissible in evidence under S.27 of the Act, viz.:
He stated that at about 11 o'clock in the night of 26th March, 1936, he and Gurunatha Goundan, son of Erangattur Kanda Goundan together murdered the deceased Sottayan alias Sennimalai Goundan by gagging his mouth with cloth by pressing him with rope....that that night....they got two bottles of illicit arrack....that a small quantity was left over in one
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 bottle only.... After (1), the empty bottle, (2), a rope and the cloth which was used for gagging the mouth have been buried in cowdung pond adjoining the cattle-shed in the compound and the other bottle with some arrack in a heap of mud near a log of wood in a corner of the compound east of the choultry at Kallippatti and that he would go there, take them out and give.
And, as I have said in my answer to Question 2, the whole of that statement can be taken into consideration as against accused 2 also. It is necessary to add for the information of the Sessions Judges and the Police that as pointed out in Cr. Appeals Nos. 615 and 660 of 1936, by a Bench of this High Court, statements made by an accused person which are or may be provable under S. 27, Evidence Act, should be clearly and carefully recorded by the police officers concerned. They should be recorded in the first person, that is to say, as far as possible in the actual words of the accused. They should not be paraphrased. Obviously, if what a man says is to be used in evidence his own words should be used and not a rendering into third person of the purport of his statement. With such a record of the statement before him it will then be for the trial Judge to decide how much of it is admissible under the section. I might add that no point has been taken by the accused's advocate, in this case that the statement before us was an inaccurate paraphrase. The making of any such statement was wholly denied. I cannot leave this case without saying that in my opinion the case for appellant 1 has been most ably argued by Mr. Chandrasekhara Sastry, his learned Counsel. Although his efforts have been unsuccessful they clearly deserve such a tribute."
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127. The case of Kashmira Singh Vs. State of M.P. (AIR 1952 SC 159) in a way sets out the guidelines for applying Sec. 30. The observations of the Hon'ble Supreme Court are:
"8. Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King, 76 Ind. App 147 at p. 155.
"It does not indeed come within the definition of 'evidence' contained in S. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross examination."
Their Lordships also point out that it is "obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities." They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence." In view of these remarks, it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated?
9. In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Laist Mohan, 38 Cal. 559 at p. 588 where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused" or to put it in another way as Reilly J. did in In re Periyaswami Moopan, 54 Mad. 75 at p. 77.
"the provision goes no further than this - where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in S.30 may be thrown into the scale as an additional reason for believing that evidence."
10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
(emphasis supplied)
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128. In Balbir Singh Vs. State of Punjab (AIR 1957 SC
216) it is held:
"...... So far as the confessional statement of Jagir Singh is concerned, it may be taken into consideration against the appellant if it fulfils the conditions laid down in Section 30 of the Evidence Act. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration. On reading Jagir Singh's confession as a whole, it appears that he was really trying to throw the main blame on the appellant, though he admitted that he entered into the house of Mst. Chinti, brought out a Kirpan lying there, and took some silver ornaments from that house. He denied that he had anything to do with the murder of Mst. Chinti or even the murder of the two boys; he more or less tried to make out that he was an unwilling spectator of the crime committed by the appellant. In these circumstances, the utmost that can be, submitted on behalf of the appellant is that the confession of Jagir Singh should not be used at all against the appellant. At one stage of his argument Mr. Sethi did submit that the confession of Jagir Singh should be excluded altogether from consideration against the appellant; later, however, he submitted that both the confessions should be read together in order to condemn both as untrue on the ground of the differences between the two confessions. We are unable to accept this submission of Mr.Sethi. We have pointed out, that some of the differences are immaterial; some are due to the desire of Jagir Singh to throw the blame on the appellant - a circumstance of which the benefit has been given to the appellant, and some other differences are clearly
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 resolved by other evidence on the records. We do not think that in these circumstances the confessional statements can be condemned out of hand or in, limine as untrue."
129. Another judgment of the Supreme Court to be referred to here is in the case of Mohd. Khalid Vs. State of West Bengal (2002) 7 SCC 334 (supra) where Kashmira Singh was followed to hold as below:
"A confessional statement is not admissible unless it is made to the Magistrate under Section 25 of the Evidence Act. The requirement of Section 30 of the Evidence Act is that before it is made to operate against the co-accused the confession should be strictly established. In other words, what must be before the Court should be a confession proper and not a mere circumstance or an information which could be an incriminating one. Secondly, it being the confession of the maker, it is not to be treated as evidence within the meaning of Section 3 of the Evidence Act against the non-maker co- accused and lastly, its use depends on finding other evidence so as to connect the co-accused with the crime and that too as a corroborative piece. It is only when the other evidence tendered against the co-accused points to his guilt then the confession duly proved could be used against such co-accused if it appears to effect (sic) him as lending support or assurance to such other evidence. To attract the provisions of Section 30, it should for all purposes be a confession, that is a statement containing an admission of guilt and not merely a statement raising the inference with regard to such a guilt. The evidence
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 of the co-accused cannot be considered under Section 30 of the Evidence Act, where he was not tried jointly with the accused and where he did not make a statement incriminating himself along with the accused. As noted above, the confession of a co-accused does not come within the definition of evidence contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is only when a persons admits guilty to the fullest extent, and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth. The legislature provides that his statement may be considered against his fellow accused charged with the same crime. The test is to see whether it is sufficient by itself to justify the conviction of the person making it of the offence for which he is being jointly tried with the other person or persons against whom it is tendered. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence. This position has been clearly explained by this Court Kashmira Singh v. State of M.P. The exact Scope of Section 30 was discussed by the Privy Council in the case of Bhuboni Sahu v R. The relevant extract from the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 said decision which has become locus classicus reads as follows: (AIR p.260 para 9) "Section 30 applies to confessions, and not to statements which do not admit the guilt of the confessing party. ... But a confession of a co-accused is obviously evidence of a very weak type. ... It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction".
32. Kashmira Singh's principles were noted with approval by a Constitution Bench of this Court Haricharan Kurmi V. State Of Bihar. It was noted that the basis on which Section 30 operates is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly. So Section 30 provides that such a confession may be taken into consideration even against the co-accused who is being tried along with the maker of the confession. It is significant, however, that like other evidence which is produced before the Court, it is not obligatory on the Court to take the confession into account. When evidence as defined by the Evidence Act is
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence is a matter in the discretion of the Court. But the Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession because Section 30 merely enables the Court to take the confession into account. Where, however, the Court takes it into confidence, it cannot be faulted. The principle is that the Court cannot start with confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidences, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on some other evidence. That is the true effect of the provision contained in Section 30. We may note that great stress was laid down on the so-called retraction of the makers of the confession. Apart from the fact that the same was made after about two years of the confession, PWs 81 and 82 have stated in Court as to the procedures followed by them, while recording the confession. The evidence clearly establishes that the confessions were true and voluntary. That was not the result of any tutoring, compulsion or pressurization. As was observed by this Court in Shankaria v. State of Rajasthan, the Court is to apply double test for deciding the acceptability of a confession i.e. (i) whether the confession was perfectly voluntary, and (ii) if so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 promise, such as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected brevi manu. If the first test is satisfied, the Court must before acting upon the confession reach the finding that what is stated therein is true and reliable. ...."
(emphasis supplied)
130. A division bench of this court as long back as in 1955, in the case of Malayara Seethu (AIR 1955 Mysore 27) held as below:
"5. The only facts proved therefore are that A-1 was taken in a taxi from her house to the bank of a river, she went to the other side and was in company with A-2 for some time at a distance in a lonely place, the delivery of A-2 on the next day and emergence of a green stick along with the placenta. Since no one except A-2 knew, if at all, the alleged insertion of the stick by the appellant, the information said to have been given by A-3 or A-4 to the other persons of the village is of no consequence. The statement of A-2 is not evidence in itself. Nor is it a substitute for evidence. As pointed out in - 'Periyaswami Mooppan v. Emperor', AIR 1931 Mad 177 (A) at p. 178.
"Section 30, Evidence Act, is a very exceptional, indeed an extraordinary, provision by which something which is not evidence may be used against an accused person at his trial. Such a provision must be used with the greatest caution and with care to make sure that we do not stretch it one line beyond its necessary intention. It is true that the section provides only that the confession of one accused person may be "taken into consideration" against the fellow accused. As I
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 understand the section, the confession cannot take the place of evidence against the co-accused; nor can it be added to supplement evidence otherwise insufficient. As I understand the matter, the provision goes no further than this: where there is evidence against the co-accused sufficient, if believed to support his conviction, then the kind of confession described in S. 30 may be thrown into the scale as an additional reason for believing that evidence."
The same view is reiterated by Reilly C. J. in - 'Sanna Huduga v. Govt. of Mysore', 13 Mys L.J. 69 (B). The fact that a green stick was seen with the placenta when it came out no doubt implies that it must have been inside the body earlier. Besides lack of proof that appellant introduced it, there is uncertainty of its having caused the delivery and the delivery being a miscarriage."
131. Recent judgment of the Hon'ble Supreme Court in the case of Surinder Kumar Khanna V. Intelligence Officer, Directorate of Revenue Intelligence [(2018) 8 SCC 271] discusses the scope of Section 30 of the Evidence Act in the light of its earlier decisions.
132. The conspectus of the above decisions is: confession can be of any type, be it may under Section 27 of the Evidence Act or Section 164 of the Cr.P.C. or extra-judicial confession; such a confession of an accused can be used against him as also the
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 fellow accused if making of that confession is proved in accordance with law; it cannot be a substitute for the other substantive evidence that the prosecution has to prove; it can only be used as supplemental to the other evidence brought on record and never it can be based alone for holding an accused guilty of an offence; and whenever section 30 is to be employed, it must be done with greater circumspection.
133. Now in this case each of the accused nos.1 to 6 gave confession statements before the investigating officers. Based on their confession statements, the investigating officers were able to recover the seized incriminating materials and in this regard we have already made elaborate discussion. The recoveries thus made falls within the ambit of Section 27 of the Indian Evidence Act. That apart, with regard to two circumstances, namely, motive and conspiracy, the confession statement of each accused can be used against other. Examined whether the ingredients of Section 30 are present, there is no dispute that accused nos.1 to 6 were tried jointly for the offences u/s 120-B and 302 read with 34 of IPC. The charge u/s 109 of IPC is against accused no.7 whose involvement in the offence is doubtful for the reasons which we
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 ascribe later. There is no doubt that accused nos.1 to 6 gave confession statements, in as much as the accused nos.1 to 6 did not deny specifically when they were examined u/s 313 Cr.P.C. to have given statements before the investigating officers. Even if they have denied, it is of no consequence in view of recoveries based on confession statements. Our discussion made above shows that the evidence given by the investigating officers is fully believable. That means the giving of confession statements by accused nos.1 to 6 is proved. This finding should not be understood that we are using the confession statements against each accused in violation of Section 25 of the Indian Evidence Act. Now if the confession given by every accused is seen, each of them not only implicated himself but also others. All the ingredients of Sec. 30 are very much present and we find this as a supplementary circumstance in proof of the independent evidence placed before the prosecution for proving the circumstances.
134. The only shortcoming in the prosecution is not obtaining certificate under Section 65-B of the Evidence Act for proving the call detail records (CDR) produced as per Exs.P.102 to P.111. This was the reason for the trial court not considering
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 the CDRs. It is a fact that certificate under Section 65-B of the Act was not obtained and produced before the trial court and hence the trial court was justified in rejecting Exs.P.102 to P.111. We do not think that rejection of Exs.P.102 to P.111 would have a negative impact on the prosecution case. We have found that the other evidence which we have discussed above is sufficient enough to draw conclusion that the prosecution case has stood proved beyond reasonable doubt.
135. Incidentally we may observe here that, what accused no.5 told PW23 and PW24 about accomplishment of their mission may be treated as extra judicial confession, though in strict sense, it is not so. Thus it can be stated that overall appreciation of primary evidence made available in regard to every circumstance leads to ultimate conclusion that the prosecution has proved its case beyond reasonable doubt. The approach of the trial court just appears to be perfunctory, it appears that the trial court judge has just noticed that the witnesses have turned hostile; he has not appreciated the evidence of the police officers and the FSL report in right perspective. It is a well established principle that whenever witnesses turn hostile, the court must make all endeavours to
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 separate the chaff from the grain and examine as to what extent the evidence of the hostile witnesses can be acted upon. If all the witnesses turn hostile in entirety, the evidence of the investigating officer and other police personnel must be put to analysis or scrutiny to find out whether from their evidence the prosecution case gets established. Casual approach leads to miscarriage of justice. The witnesses turn hostile for many reasons. At this juncture we would like to refer to a judgment of the Supreme Court in the case of Ramesh and others Vs. State of Haryana [(2017) 1 SCC 529] where it is observed as below:
"39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the Court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused / delinquent or political pressure or pressure of other family members or other
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 such sociological factors. It is also possible that witnesses are corrupted with monetary considerations."
(emphasis supplied)
136. In this case, accused no.1 owns many educational institutions and, as has come in evidence, he wields much influence at Sullia town. Some of the witnesses are his relatives; some of them are working in the educational institutions under his control and some other independent witnesses are from the surrounding vicinity. If the witnesses are strongly determined to speak against the prosecution, the public prosecutor could do nothing more than giving a suggestion to them that they had turned hostile being influenced or threatened by the accused. Perhaps this was the situation that we can visualize for the witnesses having decided to turn hostile in this case. Though it is at the cost of repetition, we are constrained to observe that if the wife of the deceased herself does not speak about a matter which is expected to be well within her knowledge, only inference that can be drawn is that accused no.1 might have won over her.
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137. From the above discussion what we find is that the involvement of accused nos.1 to 6 is only forthcoming. There was a conspiracy among them to eliminate Ramakrishna, first accused being the main conspirator. They shared common intention while conspiring and thus Section 34 of Indian Penal Code can be applied. However we do not find a case being made out against accused no. 7. The investigating officer does not speak against him; there is no evidence to hold that he instigated accused no.1 to eliminate Ramakrishna. The prosecution evidence shows his emergence only after the incident was over. What is attributed to him is that his help was sought for collecting the money to be given to accused nos.5 and 6 as agreed. He also applied for certified copies of some documents in order to obtain bail for accused no.1. Accused no. 7, being an advocate might have applied for anticipatory bail. There is no evidence against him at all.
138. Therefore our conclusion is that the judgment of the trial court as against accused nos. 1 to 6 cannot be sustained. It needs to be reversed to hold them guilty of the offences punishable u/s 120-B and 302 r/w sec. 34 IPC. Now the following order:
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 ORDER The judgment of the trial court stands set aside as against accused nos.1 to 6. They are all convicted for the offences punishable under Section 120-B and Section 302 read with Section 34 IPC.
Appeal stands dismissed concerning accused no.7.
Accused nos.1 to 6 shall be heard regarding sentence to be imposed.
Sd/-
JUDGE Sd/-
JUDGE BVV LIST NO.: 19 SL NO.: 1
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 SHKJ & GBJ:
05.10.2023 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON SENTENCE Accused no.1-Dr. Renuka Prasad, accused No.2-Manoj Rai, accused no.3-Nagesh H.R, accused no.4-Vaman Poojary @ Vaman Salian and accused no.6-Shankara @ Bhavani Shankara @ Manjoj are produced before us through video conferencing arranged in the video conferencing room in the premises of the District Court, Mangaluru.
Sri B.N. Jagadish, learned Additional State Public Prosecutor submits that accused no.5 has absconded and that he is also involved in 19 other criminal cases. He submits that accused no. 5 will be produced before the court soon after he is secured.
Sri Dinesh Kumar K. Rao, learned counsel for respondent no.5 submits that he gave intimation to accused no.5 about the conviction judgment passed against him.
We have heard accused no.1, 2, 3, 4 and 6 on the sentence to be imposed. Since accused no.5 has absconded, we proceed to hear accused no.1, 2, 3, 4 and 6 on the sentence
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 to be imposed on them. After accused no.5 is produced, we will hear him on the sentence.
It is the submission of accused no.1-Dr. Renuka Prasad that his present age is 63 years and has been suffering from many diseases. He complains of sleep disorder, hypertension, breathing problem, diabetes and further submits that he has undergone bye pass surgery. It is his further submission that his health condition has aggravated after he is held guilty even though he is innocent. He had to make some arrangements very hurriedly for the management of the educational institutions under his control. He pleads for showing sympathy.
When we question the second accused-Manoj Rai, his submission is that his present age is 43 years and has two children aged 15 years and 8 years. He is an agriculturist and his annual income is around Rs.2 lakhs. His wife is unemployed. He also prays for taking lenient view.
Third accused-Nagesh submits that his age is 40 years; he is an agricultural labourer. He has no definite income. He has got an aged mother and one child aged about five years. His wife is unemployed. He is the only support for his family. In these circumstances, he prays for taking a lenient view.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Accused No.4-Vaman Poojary @ Vaman Salian submits that his present age is 59 years and has two children aged 25 years and 15 years. He has no parents. He further submits that since he is a coolie, he has no regular income and therefore pleads for taking lenient view.
Accused no.6-Shankara @ Bhavani Shankara @ Manjoj submits that his present age is 41 years and he is a carpenter. His income is Rs.15,000/- per month. He is unmarried and has aged parents. He too prays for taking lenient view.
Sri R.B. Deshpande, learned counsel for accused no.1 submits that accused no.1 is suffering from several diseases and therefore constant medical monitoring is required. The administration of the educational institutions has been taken over by the brother of accused no.1 after pronouncement of judgment and for this reason the financial position of accused no.1 is not good. He submits that this aspect may be considered while imposing fine on accused no.1. His further submission is that the wife and the daughter of accused no.1 are already removed from the management of the educational institutions and now steps are being taken by the brother of accused no.1 for removing the latter from the management of
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 the educational institutions. Putting forth these reasons, Sri R.B.Deshpande prays for taking lenient view while imposing sentence on accused no.1.
Sri P.B. Umesh, learned counsel for accused nos.3 and 4 and appearing on behalf of Sri Harish for accused no.6, submits that reasonable fine amount may be imposed on accused nos.3, 4 and 6.
Sri B.N. Jagadish, learned Additional State Public Prosecutor submits that accused no. 6 was convicted for the offence under Section 302 IPC in another case and therefore no lenient view can be shown while imposing sentence on accused no.6. But Sri P.B. Umesh, learned counsel who appeared on behalf of accused no.6 today submits that accused no.6 was acquitted by the High Court in the appeal.
Having heard the accused and their respective counsel we have to state that this is not the rarest of rare case to impose death penalty. Therefore the next alternative is to impose life imprisonment keeping in mind the sentencing structure provided in Section 302 IPC.
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 Section 120-B of IPC does not prescribe a specific punishment. Sub Section (1) of Section 120-B states that a party to a criminal conspiracy to commit an offence punishable with death or imprisonment for life or rigorous imprisonment for two years or upwards shall, where no express provision is made in IPC for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence. Therefore we have to refer to Section 109 of IPC which prescribes punishment for abetment and that Section states that where there is no express provision in IPC for the punishment of abetment, the accused is to be punished with the punishment provided for the offence abetted. That means for the offence of conspiracy under Section 120-B, each of accused nos.1 to 4 and 6 is to be punished for life besides imposing fine on them.
We are of the opinion that the family of the deceased is to be compensated appropriately and since accused no.1 is found to be the main conspirator, he should be directed to pay compensation. In the facts and circumstances noted above, we are of the opinion that a sum of Rs. 10 lakhs appears to be a
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 reasonable amount towards compensation to be paid to the family of the deceased.
For the aforesaid reasons, we now proceed to sentence accused nos.1 to 4 and 6 in the following manner.
Each of accused nos.1 to 4 and 6 is sentenced to life and fine of Rs.10,000/- for the offence under Section 302 of IPC. In default to pay fine, each of them shall undergo imprisonment for a period of six months.
Each of accused nos.1 to 4 and 6 is sentenced to life and fine of Rs.10,000/- for the offence under Section 120-B of IPC. In default to pay fine, each of them shall undergo imprisonment for a period of six months.
The accused nos.1 to 4 and 6 are entitled for set off for the period they have already spent in jail in accordance with law.
Acting under Section 357(3) of Cr.P.C. we direct accused no.1 to pay a sum of Rs. 10 lakhs to the family of the deceased Ramakrishna. The widow of Ramakrishna shall receive the compensation amount on behalf of the family.
The text of the judgment and the order on sentence shall be sent to the trial court through e-mail. The trial court shall
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NC: 2023:KHC:35288-DB CRL.A No. 870 of 2017 take print outs of the judgment and order on sentence and supply copies of the same to each of accused nos.1 to 4 and 6 free of cost.
The Registrar (Judicial) of this Court shall issue conviction warrant forthwith.
Since it is submitted that accused no.1 is suffering from many ailments, the concerned Jail Superintendent shall arrange for treatment to accused no.1 at the jail and constantly monitor his health condition.
Sd/-
JUDGE Sd/-
JUDGE Bvv / List No.: 19 Sl No.: 1