Karnataka High Court
The Registrar General vs Venkatesha @ Chandra on 4 September, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA, BENGALURU
ON THE 4TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REFERRED CASE NO.14 OF 2010
C/W
CRIMINAL APPEAL NO.799 OF 2011
AND
CRIMINAL APPEAL NO.637 OF 2012
CRIMINAL REFERRED CASE NO.14 OF 2010
BETWEEN
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA,
BENGALURU. ... PETITIONER
(BY SRI. H.N. NILOGAL, SPL. PP.)
AND
1. VENKATESHA @ CHANDRA,
S/O VENKATASWAMY,
AGED 36 YEARS,
DINNUR COLONY, KADUGODI
BENGALURU RURAL DISTRICT.
2. MUNIKRISHNA @ KRISHNA,
S/O VENKATASWAMY,
AGED 29 YEARS,
DINNUR COLONY,
KADUGODI, BENGALURU RURAL DISTRICT
2
3. NALLA THIMMA @ THIMMA BIN GURUBOVI,
R/A CHENANAHALLI, MUTHUR POST,
PERIYAPATNA TALUK.,
MYSURU DISTRICT.
4. LAKSHMAMMA @ LAKSHMI,
W/O DODDAHANUMA,
30 YEARS, DANDUPALYA VILLAGE,
HOSAPETE TALUK,
BENGALUR ... RESPONDENTS
(BY SRI.HASHMATH PASHA, ADV.)
THIS CRIMINAL REFERRED CASE IS FILED UNDER
SECTION 366 (1) CR.P.C FOR CONFIRMATION OF DEATH
SENTENCE AWARDED TO ACCUSED 1) VENKATESHA @
CHANDRA, UTP NO.10175, 2) MUNIKRISHNA @ KRISHNA,
UTP NO.10178, 3) NALLA THIMMA, UTP NO.10177, 4)
LAKSHMAMMA, UTP NO.10179, BY JUDGMENT DATED
17/30.09.2010 PASSED S.C.NO. 443 OF 2001 ON THE FILE
OF THE XXXIV-ADDITIONAL CITY CIVIL & SESSIONS JUDGE
(SPECIAL COURT), CENTRAL PRISON PREMISES,
BENGALURU.
*******
CRIMINAL APPEAL NO.799/2011
BETWEEN
1. VENKATESH @ CHANDRA,
S/O VENKATASWAMY,
AGED ABOUT 36 YEARS,
R/O DINNUR COLONY,
KADUGODI, BENGALURU
3
2. MUNIKRISHNA @ KRISHNA,
S/O VENKATASWAMY,
AGED ABOUT 29 YEARS,
R/O DINNUR COLONY
KADUGODI, BENGALURU ... APPELLANTS
(BY SRI. HASHMATH PASHA, ADVOCATE.)
AND
STATE OF KARNATAKA,
BY VIJAYANAGAR POLICE STATION,
BENGALURU CITY.
(REPRESENTED BY LEARNED STATE
PUBLIC PROSECUTOR). ... RESPONDENT
(BY SRI. H. N. NILOGAL, SPL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED 17.9.10/30.9.10 PASSED BY THE XXXIV
ADDITIONAL CITY CIVIL & SESSIONS JUDGE (SPECIAL
COURT), CENTRAL PRISON, PARAPPANA AGRAHARA,
BENGALURU IN S.C.NOs.443 OF 2001 AND 55 OF 04 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO DEATH. THEY
SHALL BE HANGED BY NECK TILL THEY ARE DEAD AND PAY
A FINE OF RS.5,000/- EACH FOR THE OFFENCE
PUNISHABLE UNDER SECTION 396 OF IPC.
*******
CRIMINAL APPEAL NO.637/2012
BETWEEN
1. VENKATESH @ CHANDRA,
S/O VENKATASWAMY,
4
AGED ABOUT 36 YEARS,
DINNUR COLONY, KADUGODI,
BENGALURU RURAL. Appellant Nos.
1 & 2 are
deleted V.C.O.
2. MUNIKRISHNA @ KRISHNA, Dtd
S/O VENKATASWAMY, 27.10.2016
AGED ABOUT 25 YEARS,
R/O DINNUR COLONY
KADUGODI, BENGALURU RURAL
3. NALLATHIMMA @ THIMMA
AGED ABOUT 25 YEARS
S/O GURUBHOVI
R/O CHANNENAHALLI, MUTTURU POST,
PIRIYAPATTANA TALUK
MYSURU DISTRICT
DINNUR COLONY, KADUGODI,
BENGALURU RURAL
4. LAKSHMAMMA @ LAKSHMI,
W/O DODDAHANUMA
AGED ABOUT 30 YEARS
DANDUPALYA GRAMA,
HOSAKOTE TALUK
BENGALURU.
(CAUSE TITLE AMENDED VIDE COURT
DATED 27.10.2016) ... APPELLANTS
(BY SRI. G. M. ANANDA ADVOCATE.)
AND
THE STATE OF KARNATAKA,
BY VIJAYANAGARA POLICE, ... RESPONDENT
(BY SRI. H. N. NILOGAL, SPL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2)CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
5
DATED 17.9.2010 AND ORDER OF CONVICTION DATED
30.9.2010 PASSED BY THE 34TH ADDL. CITY CIVIL AND
SESSIONS JUDGE (SPECIAL COURT), CENTRAL PRISON
COMPOUND, PARAPANA AGRAHARA, BENGALURU IN
S.C.NO.443 OF 2001 - CONVICTING THE APPELLANTS/
ACCUSSED 1 TO 4 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 396 OF IPC. THE APPELLANTS/ACCUSED-1 TO 4
EACH ARE SENTENCED FOR DEATH i.e. THEY BE HANGED
BY NECK UNTIL DEATH SUBJECT TO CONFIRMATION OF
THE HON'BLE HIGH COURT UNDER SECTION 366(1) OF
CR.P.C. AND TO PAY A FINE OF RS.5,000/- EACH FOR THE
OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC.
*******
THIS CRL.RC. AND CRL.A's COMING ON FOR HEARING
THIS DAY, JOHN MICHAEL CUNHA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Criminal Reference Case No.14 of 2010 is registered on the basis of the Reference made by the XXXIV Addl. City Civil & Sessions Judge (Special Court), Central Prison Premises, Bengaluru, for confirmation of the death sentence awarded on the appellants/accused Nos.1 to 4 vide judgment dated 17.9.2010/30.9.2010 in S.C.No.443 of 2001 & S.C.No.55 of 2004 for the offence punishable under Section 396 of IPC.
6
2. Criminal Appeal No.799 of 2004 is preferred by accused Nos.1 & 2 and Criminal Appeal No.637 of 2012 is preferred by accused Nos.3 & 4, challenging the conviction under the impugned judgment dated 17.9.2010 and the order of sentence dated 30.9.2010. All these proceedings are heard together and are disposed of by this common judgment.
3. The case of the prosecution is that on 28.10.1999, the deceased Smt. Sudhamani was alone in her house bearing No.960, near Kaveri Apartment, 5th Cross, Shanthaveri Gopala Gowda Nagara, Moodalapalya, within the limits of Vijayanagara Police Station. Between 11.00 a.m. and 1.30 p.m., the appellants (hereinafter referred to as "accused Nos.1 to 4") and accused Nos.5 to 9 gained entry into the house, conjointly committed dacoity and in so committing dacoity, caused the death of the aforesaid Sudhamani by inflicting injuries on her head and other parts of the body.
7
4. In the afternoon at about 2.00 p.m., when her son returned home, he found the deceased lying dead in a pool of blood with bleeding injuries over her body. Immediately, the police were alerted. PW-21 - the Police Inspector of Vijayanagara Police Station rushed to the spot. He received the written complaint from the son of the deceased as per Ex.P-4 and based on this complaint, FIR was registered in Crime No.674 of 1999 for the offence punishable under Section 302 of IPC against unknown persons.
5. PW-21 took up investigation, conducted the inquest over the dead body as per Ex.P-2, drew up the spot mahazar Ex.P-3 and collected the blood samples and pieces of glass bangles from the spot of occurrence. The body was forwarded for post mortem examination and it was ascertained that the deceased died due to shock and hemorrhage as a result of injuries to the head. Though, in the course of investigation, he recorded the statements of number of witnesses, there was no clue about the perpetrator of the crime.
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6. On 31.1.2001, PW-24, the then Police Inspector of Vijayanagara Police Station received information about the escape of accused No.1 and other accused from Chittor prison. PW.24 and his team apprehended accused Nos.1 to 4 and on interrogation, recorded their voluntary statements as per Exhibits P.21 to P24. Based on these voluntary disclosures, he recovered the gold and silver ornaments belonging to the deceased at the instance of the accused Nos.1 to 4. During the course of investigation, the accused Nos.1 to 4 pointed out the spot of offence and accordingly, a mahazar in this regard was drawn up as per Ex.P-6. The weapons used for the commission of offence namely a knife and an iron rod marked at M.Os.16 and 17 were also recovered at the instance of accused Nos.1 to 4 and thus, the Investigating Officer having gathered necessary incriminating material in proof of murder and dacoity, laid the charge-sheet against nine accused persons for the offences punishable under Sections 454, 396 and 302 of IPC on 27.4.2001.
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7. The Special Court having been constituted for trial of the offences committed by the chargesheeted accused and other members of the Dandupalya gang, after hearing the accused, the learned Special Judge framed charges under section 396 read with Section 34 of IPC. The case against accused No.5 was split up and accused No.9 was reported as dead. Accused Nos.1 to 4, 6, 7 and 8 having denied the charges, the matter was set down for trial.
8. In support of the charges, the prosecution examined 24 witnesses as PWs.1 to 24 and got marked 29 documents as Exhibits P-1 to P-29 and the material objects as M.Os.1 to 17. Amongst the witnesses examined by the prosecution, PW-1 Sri Vishnu is the husband of the deceased. According to this witness, on the date of the incident, he had been to his personal work and at about 5.30 p.m., when he returned home, he found the deceased dead lying in a pool of blood. In his evidence, he has specifically deposed that on the same night, he came to 10 know that the gold mangalya chain, one gold necklace, one pair of gold ole, three gold bangles, one gold finger ring studded with white stones, one pair of silver anklets, which his wife was wearing on the date of the incident, were missing. He identified these gold ornaments as M.Os.5 to
10. He also identified one pair of silver toe rings M.O.3 and M.O.4 one gold finger ring which are stated to have been left on the dead body after the incident.
9.1 PW-2 Sharadamani is the sister of the deceased. According to this witness, she reached the spot only after the incident and saw the dead body. As she failed to identify the gold ornaments, she has been treated as hostile by the prosecution.
9.2 PW.3, P.W.7 and P.W.22 are the panch witnesses for the inquest mahazar Ex.P2. Except PW-22, the other two witnesses are not cross-examined by the defence.
9.3 PW-4- R. Mohan Kumar is the neighbour of the deceased. He is a panch witness to the spot mahazar Ex.P3, whereunder the blood sample M.O.1 and pieces of 11 glass bangles M.O.2 were seized from the spot of occurrence. This witness is also not cross-examined.
9.4 PW-5 Babu is a panch witness for the search and seizure of a pair of silver anklets M.O.5 from the person of accused No.4 Lakshmamma under mahazar Ex.P5. He has deposed in conformity with the case of the prosecution.
9.5 PW-6 Rudraprasad is a panch witness to the mahazar Ex.P-6. According to this witness, accused Nos.1 to 4 led the Police Inspector and the panch witnesses to Moodalpalya and led them to a house where the murder was committed and the police drew up the mahazar as per Ex.P6. He has identified his signature on Ex.P6 and has spoken about the substance of the panchanama Ex.P6. He has denied the suggestion that accused Nos.1 to 4 did not led them to the place of offence as depicted in Ex.P6.
9.6 PW-8 Jayaram, is the landlord of the shop premises, which was let out to the deceased for running a bangle shop and he has deposed about this fact in his evidence.
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9.7 PW-9 Fedric D'Souza, is the Assistant Engineer attached to the BDA, Bengaluru. According to this witness, he drew up the sketch of scene of offence as required by the Investigating Officer as per Ex.P7 on 2.12.1999.
9.8 PW-10 Suresh Gaonkar was Incharge Assistant Director of Forensic Laboratory, Kalaburagi at the relevant time. According to this witness, he examined M.Os.1, 2, 11 to 17 and issued his opinion as per Ex.P10. In his evidence, he has stated that when he received seven articles on 17.1.2000, the seals on the articles were intact and on verification of the description of the articles, he subjected them to chemical examination and issued report as per Ex.P-9. He has further stated that on 24.4.2001, he received two more articles and he compared the seal and found them intact. He examined the said articles namely the iron rod and one iron chaku. He has identified the said weapons as M.Os.16 and 17 and has stated that both the articles were stained with human blood, but the blood grouping could not be determined since the results of the 13 test were inconclusive and accordingly, gave his opinion as per Ex.P-10.
9.9 PW.11 and PW.13 Sri.Laxman Shetty and Sri.Rangaswamy are the panch witnesses to the seizure of the ornaments at the instance of accused Nos.1, 2 and 3. The evidence of PW.13 is incomplete. However, PW.11 has stood by the case of the prosecution and has deposed in proof of the recovery of the ornaments M.Os.6 to 10 at the instance of accused Nos.1, 2 and 3 under the mahazars exhibits P12, P13 and P17 respectively.
9.10 PW-12 Sri.H.S.Manjunath is the panch witness for the recovery of the iron rod and knife MOs.16 & 17. This witness has stated that accused Nos.1 to 4 led him and the police to Moodalapalya, Shanthaveri Gopalagowda Nagara. Accused No.2 Munikrishna @ Krishna removed an iron rod and knife from underneath a bush situated near a "Mori" by the side of an open space and the said weapons were seized under the mahazar Ex.P-11. In the cross examination, he has stated that the open space in question 14 was situated near the place of recovery which was measuring about 30' x 40'.
9.11 PW-14 Sri.K.H.Manjunath, Professor, Forensic Medicine, Victoria Hospital, Bengaluru, is examined to prove the post-mortem Report Ex.P14 issued by Dr.S.B. Patil and the opinion letter given by him as per Ex.P15. Since Dr.S.B. Patil, who conducted the post-mortem examination and examined M.Os.16 & 17 was dead, through this witness, the prosecution has got marked these documents. Except suggesting that the handwriting in Ex.P14 is not that of late Dr.S.B.Patil, the contents of Exhibits P-14 and P-15 are not challenged in the cross examination.
9.12 PW-15 Sri.N.Hanumantharayappa is the Police Constable attached to Vijayanagara Police Station. He accompanied PW-21 to the spot of occurrence and carried the complaint to the police station for registration.
9.13 PW-16 Sri.Gangadharaiah is another Police Constable who carried the FIR and the complaint to the Magistrate. The FIR is marked as Ex.P18. The 15 endorsement thereon would indicate that the said FIR was received by the Magistrate on 28.10.1999 at 5.15 p.m. 9.14 PW-17 Sri.H.C.Narayanashetty, Head Constable, carried the seized articles to the FSL on 14.1.2000 and brought them back and submitted his report to the Investigating Officer.
9.15 PW-18 Smt.Jayamma is the mother of the deceased. Though she has stated that on getting the information, she rushed to the spot and found her daughter lying in a pool of blood with bleeding injuries, she has failed to identify the ornaments produced by the prosecution.
9.16 PW-19 Sri.Chikka Venkataswamy, PSI, accompanied PW.24 and apprehended accused Nos.1 to 4 in Echanur village on 31.1.2001 at 9.00 p.m., and brought them to Vijayanagar Police Station. This witness has identified accused Nos.1 to 4 in the court.
9.17 PW-20 Channabasappa is the Head Constable who carried the seized articles to FSL and after examination produced them before the Investigating Officer. This 16 witness has deposed to the fact that on 26.4.2001 he carried the sealed packets along with the requisition of the Investigating Officer to the Victoria Hospital for examination and delivered the same to the concerned authorities.
9.18 PW-21 Sri.N.Chandrayya, Dy.SP, was working as Police Inspector in the Vijayanagara Police Station at the relevant point of time. According to this witness, on the date of the incident, on getting the information of the murder at about 2.00 p.m., he rushed to the spot and recorded the complaint as per Ex.P4 and forwarded the same for registration of the FIR and thereafter commenced investigation and conducted inquest as per Ex.P2 and spot mahazar as per Ex.P3 in the presence of the panchas.
9.19 PW-23 Sri.D. Janardhana Shetty is the owner of "Sathyanarayana Jewellery Mart" at Avenue Road, Bengaluru. According to the prosecution, he is the receiver of the gold ornaments from accused Nos.1 to 4. He has deposed that on 7.2.2001 at the instance of accused No.2, he handed over five items of gold jewellery to the police. 17 During his evidence, he identified M.O.6 namely a pair of gold ear studs, and M.O.7 three pieces of gold bangles as the ornaments which were sold to him by accused No.2. Likewise, this witness has stated that on the same day, at the instance of accused No.3, he handed over seven items of gold ornaments to the Investigating Officer and he identified M.Os.8 and 9 as the gold ornaments sold by accused No.2 to him. He has also identified his signature on the mahazar exhibits P-12 and P-13. Further, he has stood by the contents of the recovery mahazar Ex.P-17 and has stated that at the instance of accused No.3, he produced the gold finger ring sold by accused No.3 and identified it as M.O.10.
9.20 PW 24-Sri N. Chalapathy, Dy.SP., is the Investigating Officer. According to this witness, on 31.1.2001, on receiving credible information that accused No.1 and his companions were hiding in Echanur village in Tiptur Taluk, Tumakuru District, he proceeded to Echanur village along with his team and apprehended accused Nos.1 to 4 and brought them to Vijayanagara Police Station and 18 arrested them in Crime No.674 of 1999 of Vijayanagara Police Station. This witness has further stated that on 1.2.2001, he recorded the voluntary statements of the above named accused as per Exs.P21 to P24 and pursuant to the said voluntary statements, he effected the recovery of the gold ornaments under Exs.P-12, P-13 and P-17. Further, he has stated that on 1.2.2001, in the presence of the panchas, he recovered a pair of silver leg chain (M.O.5) under mahazar Ex.P5 and has further stated that accused No.1 took him and his team to the spot of the offence and he carried out detailed spot mahazar as per Ex.P-6. In the course of his evidence, he has identified the gold ornaments namely M.Os.6 to 10 and the silver leg chain M.O.5 and has also identified his signature on the mahazars Exs.P-12, P-13 and P-17. He has further stated that on the evening of 6.2.2001, he got the statements of the accused recorded through video recordings and the DVDs have been marked through this witness as Exs.P-25 to P-28.
9.21 In the cross examination of this witness, it is elicited that the particulars of searches of the accused were 19 entered in the Prisoners Search Register maintained in the Police Station. It is further elicited that he had interrogated accused No.1 three times i.e., on 1.2.2001, 6.2.2001 and on 8.2.2001, but he did not conduct any separate seizure mahazar at the time of taking videographs and CDs by the Videographer and did not enter it in any PF Form though he was present throughout when he got recorded the videographs and drew up the mahazars between 1.2.2001 and 15.2.2001. With regard to the procurement of independent witnesses, this witness has answered in the cross-examination that since the surrounding residents did not come forward to act as panchas and it was not possible for him to ascertain as to who were the residents of that locality, he did not secure the residents of that locality as panchas for the mahazar Ex.P-6. He has denied the suggestion that he had kept the accused in illegal detention in an isolated place, much prior to the date of their arrest and that he has foisted a false case against the accused for the reason that they had submitted a representation to the Home Ministry and Human Rights Commission. 20
10. The incriminating circumstances brought out in the evidence of the above prosecution witnesses were put to the accused in their examination under section 313 of Cr.P.C. The appellants/accused herein took up the defence of total denial and did not choose to adduce any evidence on their behalf.
11. On appreciating the oral and documentary evidence produced by the prosecution in the light of the arguments advanced by both the parties, the learned Special Judge was of the opinion that the prosecution has convincingly proved the facts and circumstances which establish beyond reasonable doubt the guilt of accused Nos.1 to 4 for the offence under section 396 of Indian Penal Code and accordingly, convicted accused Nos.1 to 4 for the said offence. Accused Nos.6, 7 and 8 were acquitted for lack of evidence.
12. Further, the Trial Court having noted that the offence proved against accused Nos.1 to 4 was not only heinous, but accused Nos.1 to 4 committed the said offence 21 with utter brutality and that they were facing trial before various courts in as many as 111 cases involving similar charges and the appellants/accused having been convicted in some of the cases, the Trial Court found it proper to award death sentence on all the four accused persons.
13. Feeling aggrieved by the impugned judgment of conviction and sentence, the appellants/accused Nos.1 to 4 have preferred the above appeals challenging the conviction as well as sentence imposed by the court below. The learned Special Judge has referred the matter seeking confirmation of the death sentence as per section 366 of Cr.P.C.
14. We have heard Sri. Hashmath Pasha, learned counsel appearing for accused Nos.1 & 2 and Sri. G.M.Anand, learned counsel appearing for accused Nos.3 and 4 and also Sri H.N. Nilogal, learned Special Public Prosecutor for the State.
15. The learned counsel appearing for accused Nos.1 & 2 has argued at length raising every conceivable 22 contention based on point of law and facts assailing the findings recorded by the learned Special Judge. He contended that the Trial Court has committed serious error in convicting the appellants under Section 396 of IPC. It is the submission of the learned counsel that the case of the prosecution is rested only on circumstantial evidence, but none of the circumstances are proved by the prosecution conclusively making out the offence charged against the accused. He pointed out that as per the prosecution case, the incident had taken place on 28.10.1999, but till the arrest of the accused on 31.1.2001, there was no suspicion whatsoever against the present appellants. It is only after their arrest, the Investigating Officer has implicated the appellants solely on the basis of the voluntary statements attributed to accused Nos.1 to 4.
16. It is the submission of the learned counsel that the so-called voluntary disclosures attributed to accused Nos.1 to 4 are not proved in accordance with law. The original statements are not produced before the court. Therefore, the Trial Court ought not to have relied on Exs.P- 23 21, P-22, P-23 and P-24 which are only the copies of the statements. Referring to the decision in CHANDRAN Vs. THE STATE OF TAMIL NADU (1978) 4 SCC 90 (PARA 36), M.ABBAS, DAKSHINA KANNADA Vs. THE STATE OF KARNATAKA, 1996 CRL.LAW JOURNAL 317(PARA 7) AND N. VIJAYAKUMAR Vs. THE STATE OF KARNATAKA, ILR 1994 KARNATAKA 491(PARA 6), he submitted that except marking Exs.P-21 to P-24, the Investigating Officer in his deposition has not reproduced the substance of the information leading to the recovery, therefore, the substantive evidence having not been brought on record, the Trial Court ought not to have attached any evidentiary value to Exs.P21 to P24. Even otherwise, it is the submission of the learned counsel that none of the witnesses have given clear evidence before the court with regard to the details of the ornaments missing from the person of the deceased. In the complaint lodged by the son of the deceased at the earliest point of time, he did not even remotely mention about the missing of the gold ornaments. The complainant has not been examined before 24 the court. The husband of the deceased, who has been examined as PW-1 has failed to speak about the details of the missing ornaments. As a result, no evidence was available before the court in proof of the missing articles.
17. Further assailing the evidence of PW.1 with regard to the identification of the gold ornaments, the learned counsel would submit that PW-1 has categorically admitted in his evidence that he was shown these ornaments in the Police Station, making it evident that he has identified the articles as shown to him in the Police Station. Therefore, no credence could have been given to his evidence. Barring the evidence of PW.1, the prosecution did not produce any acceptable evidence with regard to the identification of the ornaments. Therefore, the recovery evidence relied on by the prosecution could not have been taken as a circumstance incriminating accused Nos.1 to 4 in the alleged offence.
18. The learned counsel further contended that even with regard to the circumstance of the accused pointing out 25 the spot of offence, there is no consistent evidence on record. The Investigating Officer has stated that the place of offence was pointed out by accused No.1, whereas the panch witness examined by the prosecution in proof of this circumstance namely PW.6 has stated that the accused Nos.1 to 4 pointed out the spot of offence. Because of this inconsistency, even this circumstance is rendered as doubtful and therefore, the Trial Court should not have placed any reliance on this evidence to connect accused Nos.1 to 4 to the offence in question.
19. Lastly, it is the submission of the learned counsel that the circumstance of recovery of the weapons namely M.Os.16 and 17 is also shrouded with suspicion. According to the prosecution, the accused were arrested on 1.2.2001, whereas recovery is said to have been effected on 9.2.2001. There is no explanation whatsoever for the inordinate delay. That apart, these weapons are stated to have been recovered from an open place and therefore, no evidentiary value could have been attached to the recovery of these weapons. The prosecution has also failed to prove that the 26 blood stains found on the said weapons tallied with the blood group of the deceased. As a result, even the recovery of these weapons cannot be connected to the murder of the deceased.
20. Alternatively, the learned counsel submitted that even if the evidence produced by the prosecution in proof of the recovery of the articles is accepted, it would only give rise to the presumption that accused Nos.1 to 4 are either receivers of the stolen property or the persons who committed the theft; but it would not lead to the conclusion that any of the accused had committed the murder of the deceased, therefore, the conviction recorded by the Trial Court under section 396 of IPC cannot be sustained. In support of this argument, the learned counsel has referred to the decision in SANWAT KHAN AND ANOTHER Vs. STATE OF RAJASTHAN, AIR 1956 SC 54 AND RAJKUMAR @ RAJU Vs. STATE (NCT OF DELHI) AIR 2017 SC 614.
21. Further, the learned counsel would submit that the panchnamas which are relied on by the prosecution are 27 not proved in accordance with law. The statements made therein are hit by Section 162 of IPC and therefore, the Trial Court should not have based any of the findings on the said Mahazars relied on by the prosecution.
22. The learned counsel would further submit that in order to make out a case under section 396 of IPC, the prosecution is essentially required to establish the participation of more than five persons in the commission of the offence. The Trial Court, in the impugned judgment has recorded a clear finding that the prosecution has failed to produce any evidence against accused Nos.6 to 9 in proof of their presence or participation during the occurrence. Therefore, in the absence of any clear evidence in proof of the involvement of five or more persons, the conviction under section 396 of Indian Penal Code on the face of it, is illegal and perverse and therefore warrants interference by this Court.
23. Assailing the award of death sentence, the learned counsel has referred to Section 75 of the IPC and 28 has emphasized that the Trial Court has not framed any charge against any of the accused based on previous conviction and no material was placed before the court to show that the accused had suffered any previous conviction, therefore, solely on the basis of the statistics furnished by the prosecution, the Trial Court should not have treated the case in hand as rarest of rare case so as to award the extreme penalty of death sentence. The learned counsel has thus sought for setting aside the order of conviction as well as the death sentence awarded by the court. He has placed reliance on the following citations in support of his argument:
(1) ILR 1994 KAR 491
(2) 1996 CRL.LJ KAR 317
(3) 1978 (4) SCC 90
(4) AIR 1947 PC 67
(5) 1971(1) SCC 503
(6) ILR 2001 KAR 3203
(7) 2009(9) SCC 417
(8) AIR 1939 MAD 15
(9) 1996(6) SCC 457
(10) AIR 1966 SC 119
(11) 1987(3) SCC 480
(12) ILR 1996 KAR 2
(13) 2015(3) SCR 773
(14) 2008(11) SCC 709
(15) AIR 2013 SCW 529
29
(16) AIR 1956 SC 54
(17) AIR 2017 SC 614
(18) AIR 1980 SC 1753
(19) 1994(1) CCR 482
24. The learned counsel on behalf of accused Nos.3 and 4 has adopted the above arguments.
25. The learned Special Public Prosecutor Sri H.N. Nilogal, however has argued in support of the impugned judgment and the order of sentence. The learned counsel would submit that the evidence produced by the prosecution is sufficient to prove the circumstances which clearly establish the guilt of the accused for the offence of murder as well as dacoity. The prosecution has convincingly established the details of the ornaments missing from the person of the deceased by examining PW-1, who is the most competent witness to speak about the ornaments belonging to the deceased. There is no reason to doubt the testimony of PW-1 with regard to the identification of the gold ornaments. The prosecution has given sufficient explanation for non-examination of the complainant. Even otherwise, in the fact situation of the present case, the non- 30 examination of the complainant does not weaken the case of the prosecution nor does it throw doubt on the testimony of PW-1 and other witnesses examined by the prosecution.
26. Meeting the contention of the accused that the certified copies of the voluntary statements marked by the prosecution are not admissible in evidence, the learned Special Public Prosecutor submitted that it was within the knowledge of the accused that they were facing trial before the Special Court in various other cases and the originals of Exhibits P21 to P24 were produced before the same court in other case. Therefore, the non-production of the original cannot be canvassed as a ground to discard Exhibits P21 to P24. It is the submission of the learned SPP that the certified copies are inherently admissible in evidence and the accused having not raised any objection regarding the proof or admissibility of these documents at the time of their production in evidence, cannot seek to urge the said contention at the appeal stage. On this point, the learned Special Public Prosecutor has placed reliance on the decision in GANGABHAVANI VS. RAYAPATI VENKAT REDDY & 31 OTHERS, 2013 CRL.L J. 4618. On the question of the proof and admissibility of the recovery mahazars Exs.P-12, P-13 and P-17, the learned counsel would submit that even these documents were admitted in evidence without any objection being taken by the accused either with regard to the mode of proof or with regard to the admissibility of these documents and therefore, even this contention is not tenable and is liable to be rejected.
27. Placing reliance on the decision in C.MUNIAPPAN vs. STATE OF TAMIL NADU, (2010) 9 SCC 567, the learned Special Public Prosecutor submitted that the contentions urged by the learned counsel for the accused are bordering on trivial discrepancies or defects in the investigation which do not affect the core case of the prosecution on vital aspects. The law on this issue is well settled that the defect in the investigation cannot be a ground for acquittal and therefore, the accused cannot take advantage of minor inconsistencies or variation in the evidence of the prosecution witnesses to contend that the conviction recorded by the Trial Court is not based on any legal 32 evidence. As the prosecution has convincingly proved all the circumstances which un-erringly point towards the complicity of the accused, there is no escape from the conclusion that the accused are guilty of the offence charged against them.
28. The learned Special Public Prosecutor further submitted that the circumstance of the accused pointing out the place of offence and the recovery of the weapons used for the commission of offence near the house of the deceased coupled with the medical evidence adduced by the prosecution that the injuries suffered by the deceased could be inflicted by the use of the said weapons is sufficient to prove the fact that the accused had been to the spot of occurrence and on committing the murder of the deceased, they robbed the gold ornaments of the deceased. The circumstance of the recovery of these gold ornaments at the instance of the accused in the absence of any cogent explanation as to the possession thereof would conclusively establish that the robbery and murder has taken place in the same transaction and therefore, the Trial Court was 33 justified in holding that the accused are guilty of the offence under section 396 of IPC.
29. With regard to the requirement of five or more persons to constitute the offence under Section 396 of IPC is concerned, the learned Special Public Prosecutor has pointed out that right from the inception, the case of the prosecution was that nine accused persons were involved in the commission of the offence. Merely because the Trial Court had acquitted some of the accused, it does not lead to the inference that the other accused did not participate in the commission of the offence. The Trial Court has acquitted accused Nos.6 & 7 only on the ground of lack of evidence and not on account of their absence from the spot of occurrence. Therefore the finding recorded by the Trial Court on this issue does not call for any interference by this Court.
30. We have considered the arguments advanced by the learned counsels on both sides, examined the records 34 and have carefully scrutinized the statements of the witnesses and the documents relied on by the prosecution.
31. From the material on record, it is evident that there are no eyewitnesses to the incident. The case of the prosecution is rested entirely on circumstantial evidence. These circumstances relied on by the prosecution are:-
1. The factum of the murder and the simultaneous missing of gold and silver ornaments from the person of the deceased.
2. Recovery of the missing ornaments belonging to the deceased at the instance of the appellants/accused Nos.1 to 4.
3. Recovery of weapons viz., iron rod- M.O.16 and knife M.O.17 near the spot of occurrence at the instance of the appellants/accused Nos.1 to 4.
4. The conduct of the appellants/accused Nos.1 to 4 in pointing out the place of occurrence.35
32. The Trial Court was of the view that the prosecution has convincingly proved all the above circumstances which unerringly point towards the guilt of the accused beyond reasonable doubt. Based on these findings, the Trial Court has held accused Nos.1 to 4 guilty of the offence under Section 396 of Indian Penal Code. Since the findings recorded by the Trial Court are seriously assailed by the appellants raising large number of grounds as narrated above, we have re-appreciated the entire material on record to find out whether the circumstances relied on by the prosecution are conclusively proved so as to draw the inference of guilt of the accused for the offence charged against them.
33. The first circumstance pressed into service by the prosecution is the factum of the murder and the simultaneous missing of the gold and silver ornaments from the person of the deceased.
36
34. There is no serious dispute as to the fact that the incident had taken place on 28.10.1999 in the residential house of the deceased. The evidence of PW-1- the husband of the deceased, PW-2 her sister, PW-18 her mother and the neighbours PW-3 and PW-22, who rushed to the spot soon after the incident, coupled with the evidence of PW-21, who recorded the complaint as per Ex-P4 and the contents of the FIR Ex-P18 clearly indicate that the deceased was murdered when she was alone in the house on the fateful day. The evidence of PW-14-Professor in Forensic Department attached to Victoria Hospital, Bengaluru through whom the post-mortem report Ex-P14 is marked, indicates that the deceased had sustained the following injuries:-
1. Lacerated wound over right parietal region 7 cm above right ear measuring 3cm x1cm bone deep;
2. Lacerated wound over right parietal 2.5 cm above injury No.(1) measuring 5cmx 2cm bone deep.
3. Lacerated wound over inter parietal region 2 cm to left of injury (2) measuring 2cm x 0.5 cm.37
4. Lacerated wound over left parietal region measuring 5cm x 3cm x skull cavity deep through which brain matter is draining out. It is situated 10 cm above left ear.
5. Lacerated wound 4cm above left ear measuring 10cm x 3cm x skull cavity deep situated in the fronto parietal temporal region.
6. Lacerated wound 1cm above left ear in the temporal region measuring 4cm x 1cm x skull cavity deep.
7. Lacerated wound 4cm behind injury No.5 in left side of occipital region measuring 4cm x 1.5 cm x bone deep.
8. Lacerated wound in the mid occipital region measuring 3 cm x 1cm x bone deep.
9. Lacerated wound over right parietal-occipital region situated 7cm behind and above right ear.
10. Lacerated wound over left occipital region measuring 1.5 cm x 1cmx bone deep.
11. Incised wound over right ear lobule measuring 1cm x 0.5 cm x 0.5 cm.
12. Incised wound over left ear lobule measuring 1cm x 0.5 cm x 0.5 cm.
13. Incised wound over palmar aspect of left thumb distal phalanyx measuring 3 cm x 2cm x muscle deep.38
35. The unchallenged testimony of PW-14 with regard to the cause of death and the opinion furnished by Late Dr. S.B. Patil goes to show that the deceased had succumbed to the injuries inflicted with weapons M.O.16 and M.O.17. PW.14 has unequivocally stated that the injuries noted in the post-mortem report Ex-P15 are possible to be caused by weapons like M.O.16 and M.O.17. There is no cross-examination of PW-14 on the opinion given by him regarding the use of the said weapons for inflicting the said injuries. This evidence, in our opinion, is sufficient to hold that the injuries sustained by the deceased which led to her death were caused by M.O.16- iron rod and M.O.17-knife.
36. With regard to the details of the missing ornaments of the deceased, the prosecution has adduced the direct evidence of PW-1. He has unequivocally stated in his evidence that on the night of the incident, he came to know that the ornaments which his wife was wearing on that day viz., golden mangalya chain, one golden necklace, one pair of golden ole, three golden bangles, one golden 39 finger ring studded with white stone and one pair of silver anklets were missing. He has identified these articles as M.Os.5 to M.O.10. Though it is argued that the identification made by PW-1 cannot be relied on, as he has stated in his evidence that these ornaments were shown to him in the Police Station, we do not find that merely on that count, his evidence could be discarded. The learned counsel has referred to the case of RAMKISHAN MITHANLAL SHARMA AND OTHERS vs. STATE OF BOMBAY, AIR 1955 SC 104 with reference to para 17 to contend that identification of material objects in the police station is hit by Section 162 of Cr.P.C. Reliance on this decision in our view is misplaced. In this case, the Hon'ble Supreme Court has resolved the conflict of opinion between various High Courts in regard to the admissibility of evidence regarding identification parade. In Para 19, Hon'ble Supreme Court has observed thus:-
"In order to resolve this conflict of opinion one has to examine the purpose of test identification parades. These parades are held by the police in the course of their investigation for the purpose of enabling witnesses to identify the properties which are the subject matter of the offence or to 40 identify the persons who are concerned in the offence. They are not held merely for the purpose of identifying property or persons irrespective of their connection with the offence."
37. No doubt, in the said decision, it is held that the process of identification involves the statements either express or implicit by the identifying witnesses which would fall within the bar of Section 162 Cr.P.C, but in the same paragraph, the Hon'ble Supreme Court has explained that:-
The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of Section 162 and would be inadmissible in evidence, the only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial."
38. In the case on hand, substantive evidence is given by PW-1 before the court narrating the details of the missing items and also with regard to their identification. In our view, PW-1 is the most competent witness to speak 41 about these facts. In appreciating his evidence, it is apt to note that in the cross-examination of PW-1, it is elicited as under:-
"On the date of the incident, my wife was wearing MOs 3 to 10. Few days prior to the incident, there was Sathyanarayana Pooja in our house and my wife worn MOs 3 to 10 on her person and continue to wear MOs.3 to 10 till her last breath xxxxxxxxxxxx Since I have seen MOs 3 to 10 having been regularly used to my wife, therefore, I say that MOs 3 to 10 are the articles belonging to my deceased wife."
.
39. In the face of this evidence, in our view, no further proof is necessary either with regard to the details of the articles missing from the person of the deceased or with regard to their identification. That apart, the evidence of PW-1 finds corroboration in the contents of the inquest mahazar Ex-P2 wherein the details of the missing ornaments have been noted at the earliest point of time. This evidence, in our opinion is sufficient is to hold that the deceased was wearing M.O.5 to M.O.10 on the date of the incident and she was robbed off these ornaments during the 42 incident. As a result, we hold that the first circumstance projected by the prosecution is duly proved.
40. The second circumstance relates to the recovery of M.Os.5 to M.O.10. It is the case of the prosecution that after the arrest of accused Nos.1 to 4, on 1.2.2001, PW-24 the Investigating Officer recorded their voluntary statements as per Exs-P21 to P24 and pursuant to the said voluntary disclosures, respective accused Nos. 1,2 and 3 led the Investigating Officer and the panch witnesses to the shop of one Janardhana Shetty PW-23 and at their instance, M.O.6 to M.O.10 were recovered and further, it is the case of the prosecution that on search of accused No.4 soon after her arrest, M.O.5 silver anklets was recovered from her possession.
41. In proof of this circumstance, the material witnesses examined by the prosecution are PW-5, PW-11 and PW-24.
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42. PW-5- Babu has deposed that on 1.2.2001, he was called to Vijayanagar Police Station and in his presence, a lady constable searched the person of Laxmi namely accused No.4 and seized one pair of silver anklet, one pair of golden ole and one saree. In this regard, a panchanama was drawn in the police station as per Ex-P5. PW-5 has identified his signature at Ex-P5(a) and has also identified the silver anklets marked as M.O.5. In the cross- examination, nothing has been elicited to discredit the testimony of PW-5 either with regard to the search of accused No.4 or with regard to the recovery and identification of the silver anklets M.O.5.
43. PW-11 is a panch witness to the recovery of the gold ornaments at the instance of accused No.1, 2 and 3. According to this witness, he was working as a broker in old gold ornaments. On 7.2.2001, he acted as panch witness to the recovery mahazars Exs-P12, P13 and P17. He has specifically deposed that on 7.2.2001 at about 10.00 or 11.00 a.m., he was asked to act as a panch, at that time, accused No.1 Venkatesha @ Chandra was sitting in the 44 Police van. Then accused No.1 led PW-11 and the police to the jewellery shop of one Janardhana Shetty. Accused No.1 told the said Janardhana Shetty that he has sold some gold ornaments to him and Sri. Janardhana Shetty admitted the same. He produced five items of gold ornaments. Among them, accused No.1 identified one pair of gold ear stud and three gold bangles. The police seized them and drew up the mahazar. Thereafter, accused No.2 led him and the police to the same jewellery shop between 2.00 to 3.00 p.m. and accused No.2 told the owner of the shop Janardhana Shetty that he had sold some gold ornaments. Janardhana Shetty produced eight items of gold ornaments. Out of the eight items, accused No.2 identified two gold ornaments, one necklace and mangalya chain having two threads. Further, this witness stated that on 8.2.2001, once again police requested him to act as panch and at that time, accused No.3 was in the police custody. He led PW-11, other panch witness and the police to the jewellery shop of Janardhana Shetty and showed the owner of the shop Janardhana Shetty saying he had sold in all 10 -11 items of gold 45 ornaments to him. Janardhana Shetty produced 10 -11 items of gold ornaments. Accused No.3 identified one gold ring out of 10 -11 items. This witness identified his signature on the recovery mahazars Exs-P12, 13 and 17. Even in the cross-examination, he maintained that the respective gold ornaments were recovered at the instance of respective accused. It is also elicited that he was working in the shop of said Janardhana Shetty about 20 years earlier to the date of recovery.
44 PW-23 Janardhana Shetty is the Jeweller. According to this witness, on 07.02.2001, at about 10.00 a.m., Sri. Chalapathy, the Police Inspector of Vijaynagar Police Station had brought accused No.1 to his shop and the said accused told before the police that he had sold five items to PW-23. He produced five gold articles before the police and police seized them under the mahazar drawn in his shop between 10.00 a.m. -11.00 a.m. He identified his signature on Ex-P12 and also identified M.Os.6 and 7 as the gold ornaments produced by him at the instance of accused No.1. He further stated that on the same day, at 2.00 p.m., 46 accused No.2 was brought to his shop alongwith the panch witnesses and at the instance of accused No.2, he produced the gold articles sold to him by accused No.2. He identified the said gold articles viz., one gold chain with two line mangalya M.O.8 and a gold necklace M.O.9 and also identified his signature in the mahazar Ex-P13. Further, PW- 23 deposed that on 8.2.2001, between 11.00 to 12.00 a.m., accused No.3 was brought to his shop and at the instance of accused No.3, he produced gold ornaments sold to him by accused No.3 and he identified the same as M.O.10(gold finger ring) and identified his signature in Ex-P17.
45. In the cross-examination, it is elicited that there is no difference between four bangles M.O.5 in respect of design, make, weight etc., He can distinguish between the four bangles and who has given them to him. He denied the suggestion that he cannot identify the bangles M.O.5 as to which of the accused gave it to him. He also denied the suggestion that similar bangles are available in his shop and around his shop. It is elicited from PW-23 that he retains the purchased articles in the same condition for about six 47 months to one year. It is also elicited that accused No.1 had come twice, another three and another accused one time for selling the articles to him.
46. PW-24- Sri. N. Chalapathy- Investigating Officer has corroborated the testimony of the above witnesses and has clearly stated in his evidence that after arrest of accused Nos.1 to 4, he recorded their voluntary disclosures as per Exs-P21 to P24. In paras 10, 11, 12 and 13 of his evidence, he has deposed about the recovery effected by him under the mahazars Exs-P12, P13 and P17 in the presence of the panch witnesses. He has identified these articles viz., M.O.6 and M.O.7 and also spoke about the contents of the mahazars Exs-P12, 13 and 17. Further, he has also stated about the seizure of the silver anklets from the possession of accused No.4, soon after the arrest of accused No.4 under Ex-P5 and has identified M.O.5.
47. In appreciating the evidence of the above witnesses, it is relevant to note that no contradictions or material omissions are brought out in the cross-examination 48 of these witnesses. No previous statements under Section 161 Cr.P.C. or statements in the panchanams are confronted to any of these witnesses so as to discredit their testimony with regard to their presence during the recovery of the incriminating materials at the instance of the respective accused or their participation in the preparation of the panchanamas Exs-P12, 13 and P17. These panchanamas and the contents thereof lend full corroboration to the testimony of these witnesses both with regard to the recovery and the identification of the articles thereof connecting them to the respective accused. The discrepancies highlighted by the learned counsel for the appellants in the course of the argument cannot be termed as material contradictions which would affect the credibility of their evidence which would render the case of the prosecution doubtful. The discrepancies pointed out by the learned counsel are not fatal to the prosecution case. Undisputedly, the incident has taken place on 28.10.1999. The accused were arrested on 01.02.2001. Naturally human memories are bound to blur with the passage of time. 49 Moreover, the witnesses were examined more than three years after the recoveries. Therefore, it cannot be expected from the witnesses to depose with mathematical precision.
48. What inspires confidence in the evidence of the above witnesses is that none of these witnesses are shown to be interested or partisan witnesses. There is not even a remote suggestion to any of these witnesses that the material objects recovered at the instance of the accused are either planted or propped up by the prosecution. On the other hand, the evidence on record goes to show that the seized ornaments are proved to be belonging to the deceased. These properties were subjected to property form and were produced before the Magistrate soon after the recovery. The regularity of the procedure itself lends corroboration to the testimony of the above witnesses with regard to the recovery of these gold articles. Therefore, the argument of the learned counsel that only after the arrest, the accused are tried to be linked to the offence by concocting the recovery evidence cannot be accepted. On thorough scrutiny of the evidence produced by the 50 prosecution in proof of the above circumstances, we are fully convinced that the gold ornaments belonging to the deceased are recovered pursuant to the voluntary statements made by the accused. Therefore, we are of the view that the evidence produced by the prosecution in proof of the recovery of M.O.s 5 to 10 is fully reliable and could be taken as one of the prime circumstance connecting the accused to the offence charged against them.
49. Placing reliance on the decisions in CHAKRAVATHY vs. STATE BY KORAMANGALA POLICE, ILR 2001 KARNATAKA 3203(para 22) and MURLI AND ANOTHER vs. STATE OF RAJASTHAN, 2009 (9) SCC 417(para 34), it is argued that mere marking of the panchanama is not a proof of its contents unless the witnesses and the Investigating Officer speak to the contents thereof. We are in agreement with the principle of law discussed in the above decision. But in the instant case, it is relevant to note that in addition to marking of Exs.P12, P13 & P17 the panch witnesses and the receiver of the ornaments have specifically deposed about the contents of Exs-P12, P13 and P17 and have 51 further stated that the respective accused asked the receiver viz., PW-23 to return the gold ornaments sold by them. This evidence therefore satisfies all the requirements laid down in the above decisions so as to render Exs-P12, P13 and P17 admissible in evidence. Thus on overall consideration of the above evidence, we hold that the prosecution has proved the above circumstances with cogent and convincing evidence thereby establishing that M.O.5 to M.O.10 were recovered at the instance of accused Nos.1 to 4 as above.
50. The third circumstance is the conduct of the accused in showing the place of offence. In proof of this fact, prosecution has examined PW-6, an independent witness. According to this witness, police had called him to the police station and at that time accused Nos.1 to 4 were in the police station. Accused Nos.1 to 4 led PW-6, Police Inspector and others to a house at Moodalpalya, and showed the place where they had committed the murder of a woman. A mahazar was drawn regarding these proceedings as per Ex.P6. PW-6 identified his signature 52 thereon at Ex.P6(a). In the cross-examination, it is elicited that he went to the said spot along with the Investigating Officer, two police constables, panch witness and accused Nos.1 to 4, in the police jeep. He denied the suggestion that accused Nos.1 to 4 did not lead them to the place shown in Ex.P6.
PW-24, the Investigating Officer in paragraph 6 of his evidence deposed that on 1.2.2001, accused No.1 took him and the panchas to the spot of the offence and he carried out a detailed mahazar as per Ex.P6. In paragraph 29 of his evidence, it is elicited that since the surrounding residents did not come forward to act as panchas and it was not possible for him to ascertain who were the residents of that locality, he did not secure the residents of the locality to be the panchas for drawing the mahazar-Ex.P6. He denied the suggestion that none of the accused led him to the spot to draw the mahazar-Ex.P6.
51. The veracity of the testimony of PW-6 and PW-24 is assailed on two grounds: firstly, it is contended that the 53 testimony of PW-6 and PW-24 is inconsistent, inasmuch as, PW-6 has stated in his evidence that accused Nos.1 to 4 led them to the spot of offence, whereas PW-24 has stated that only accused No.1 led the police party to the spot; secondly, the evidence of PW-6 is contrary to the contents of Ex.P6, wherein it is specifically mentioned that the spot was shown only by accused No.1 and therefore, it is argued that the testimony of PW-6 and PW-24 being inconsistent to each other is liable to be discarded.
52. We are not impressed by this argument. It is a settled rule of appreciation of evidence that the evidence of a witness cannot be impeached through the evidence of another witness. The credit of a witness could be impeached only in the mode set out in Section 155 of the Evidence Act; secondly, as pointed out by the learned SPP, the accused having not challenged the statement of PW-6, which according to the accused is contrary to Ex.P6, cannot now seek to dispute this evidence on the ground that the same is inconsistent with the contents of Ex.P6. We find support for this view in GANGABHAVANI Vs. RAYAPATI 54 VENKAT REDDY AND OTHERS, 2013 CRL.L.J. 4618 (PARA
17), the Hon'ble Supreme Court has held as under:
" 17. This Court in Laxmibai (Dead) thr. L.Rs and Anr. V. Bhagwanthuva (Dead) Thr. L.Rs. and Ors., AIR 2013 SC 1204 examined the effect of non-cross examination of witness on a particular fact/circumstance and held as under:
"31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility."
In Paragraph 18, it is further held as under:
" 18. Thus, it becomes crystal clear that the defence cannot rely on nor can the Court base its finding on a particular fact or issue on which the witness has not made any statement in his examination-in-chief and the defence has not cross-examined him on the said aspect of the matter."
53. It is pertinent to mention that even the decision relied on by the learned counsel appearing for the appellants reiterates the very same principle. In KANU 55 AMBU VISH vs. THE STATE OF MAHARASHTRA, (1971) 1 SCC 503, at paragraph 10 it is held as under:
"10. xxxx. It may be pointed out that any statement made in the Panchnama cannot be used in evidence except for the purposes of contradicting the witness whose statement is contained in the Panchanama, but if it is intended to contradict him by the writing his attention must before the writing can be proved, be called to those parts of it which are to be used for contradicting him. This is what is required under Section 145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain, that part of the statement that is put to him does not constitute substantive evidence."
The defence having not confronted to PW.6 the so-called inconsistent statement found in Ex.P6, the evidence given by PW-6 to the effect that accused Nos.1 to 4 led him and the police party to the spot deserves to be accepted.
54. Apropos the contention of the learned counsel that the contents of Ex.P6 and the evidence of PW-6 do not have the effect of incriminating the accused, as the spot of occurrence was known to the Investigating officer much prior to the arrest of accused No.1 is concerned, suffice it to 56 note that there is nothing in the entire evidence to suggest that accused Nos.1 to 4 derived knowledge of the spot of occurrence through the Investigating officer or through any other mode. There is no explanation by the accused that they came to know of the spot of occurrence through the Investigating Officer or through any other witnesses. On the other hand, the evidence of PW.6 coupled with the contents of Ex.P6 clearly establish that accused Nos.1 to 4 by themselves showed the place of occurrence to the police and the panch witnesses, as a result, this evidence is rendered relevant under section 8 of the Evidence Act thereby establishing yet another circumstance in proof of the complicity of accused Nos.1 to 4 in the offence charged against them.
55. Lastly, the circumstance of recovery of M.Os. 16 and 17. In proof of this circumstance, the prosecution has examined PW-12, the panch witness to the recovery mahazar, Ex.P11. According to this witness, accused Nos.2 and 3 and the other accused pointed out the place where they had hidden the weapons used for the commission of 57 the offence. Accordingly, the above mentioned accused led him and the police to Moodlapalya Shantavary Gopalagowdanagar, 5th cross. Accused No.2-Munikrishna removed an iron rod and a knife from underneath a bush. Police seized the articles and drew up the mahazar Ex.P11. PW-12 identified his signature on Ex.P11 and also identified the weapons seized thereunder namely M.Os. 16 and 17. In the cross-examination, it is elicited that the open space in question was situated near the place of recovery measuring about 30 ft x 40 ft. He denied the suggestion that at the instance of the police he is giving false evidence.
56. A reading of Ex.P11 reveals that the said mahazar was drawn at the spot. It is specifically mentioned therein that the weapons seized at the instance of accused No.2 were packed and sealed. PW-24, the Investigating Officer has deposed that he sent the seized articles viz., M.Os. 16 and 17 to FSL on 23.04.2001. There is absolutely no cross- examination of PW-24 in this regard.
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57. PW-20, the police constable attached to Vijayanagar Police Station has stated that he carried these articles to the FSL for examination on 24.4.2001. PW-10 the Scientific Officer attached to FSL, Bangalore has deposed that on 17.1.2000 his office received seven (7) seized articles, the seal of the articles were intact and matched with the description furnished therein. He examined those articles and submitted his opinion as per Ex.P9. On 24.4.2001, his office received two more articles in Crime No.674 of 1999 of Vijayanagar police station. The seal was intact. He examined the iron rod and iron chaaku contained therein and furnished his opinion as per Ex.P10. He identified those weapons as M.Os. 16 and 17 and further stated that the said articles were stained with human blood; blood group could not be determined since results of the test were inconclusive.
58. The evidence of the above witnesses is objected on the grounds that (i) the recovery was effected from the public place; (ii) the recovery evidence is not a conclusive proof to connect the accused to the alleged offence; and (iii) 59 the opinion of the Doctor has no bearing on the culpability of the accused.
59. We have considered the above objections. No foundation appears to have been laid in the evidence to contend that the place of recovery was accessible to one and all. There is not even a remote suggestion in this regard to any of the above witnesses. On the other hand, the evidence adduced by the prosecution goes to show that accused No.2 himself removed the weapons hidden underneath the bush in the presence of the other accused making it evident that the place where they were hidden was within the exclusive knowledge of the accused. That the place of recovery was open and accessible to all is not a criterion in deciding the acceptability of the evidence. The test is whether the place is ordinarily visible to others. There could be concealment even in the open space accessible to all.
60. Large number of authorities are cited at the Bar to contend that the recovery evidence produced by the 60 prosecution is inadmissible in evidence,. Even this plea in our opinion does not find support either in the provisions of the Evidence Act or in the various decisions relied on by the learned counsel.
61. Section 27 of the Evidence Act renders relevant the facts discovered pursuant to the information given by the accused. The Section reads as under:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Further, Section 162(2) of Cr.P.C., provides that nothing in the said section shall deem to apply to any statement falling within the provisions of clause (i) of Section 32 or to effect the provision of Section 27 of the Indian Evidence Act, 1872.
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62. One of the objections raised during the argument is that the evidence regarding recovery of these weapons is inadmissible in evidence since the witnesses have not spoken about the specific information divulged by the respective accused leading to the recovery. It is contended that except marking the recovery panchnamas Ex.P21 to Ex.P24, the contents thereof are not deposed by the Investigating Officer and therefore, the evidence given by PW-24 and other witnesses in proof of the recovery is not admissible in the eye of law. We are unable to accept this argument. We have reproduced at length the evidence of PW.12 who has unequivocally stated in his evidence that the accused informed before him and the other panch witness that he would show the place where the weapons were hidden and accordingly all the accused took them to the spot and accused No.2 removed the weapons hidden beneath the bush. Therefore, it cannot be said that the information leading to the recovery of the goods has not been deposed by the witnesses and on that account their evidence is rendered inadmissible.
62
63. The statement of law and the ratio in PULLUKURRI KOTTAYYA AND OTHERS Vs. EMPEROR, AIR 1947 PC 67 is followed by the Hon'ble Supreme Court in STATE OF MAHARASHTRA Vs. DAMU, S/O GOPINATH SHINDE AND OTHERS, (2000)6 SCC 269. Dealing with this proposition, it is held by the Hon'ble Supreme Court as under:
"Pullukurri Kottayya -v-
Emperor is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
64. In the instant case, the information furnished by the accused is proved to be distinct and it has led to the recovery of weapons, M.Os. 16 and 17, thereby establishing this circumstance against the accused.
65. It has been argued that the recovery of M.Os.16 and 17 have been effected only at the instance of accused No.2 and therefore, the said evidence cannot be used against the other accused. We are unable to subscribe to 63 this view either. As already stated above, PW-24, the Investigating Officer has unequivocally stated in his evidence that soon after the arrest of the accused, he interrogated them and recorded the voluntary disclosures as per Ex.P21 to Ex.P24. It is pertinent to note that the admissible portion of the voluntary disclosures made by accused Nos.1 to 4 are identical, in the sense that all the four accused persons have stated in their respective voluntary disclosure statements that they would show the place of murder and would also show the person to whom the golden ornaments were sold. Going by the evidence of PW.24, it is clear that Ex.P21 to Ex.P24 were recorded one after another. The question as to whether the facts discovered pursuant to the information given by accused would incriminate all the accused need not detain us in view of the law laid down by the Hon'ble Supreme Court in STATE (NCT OF DELHI) Vs. NAVJOT SANDHU @ AFSAN GURU, (2005) 11 SCC 600, wherein at para 145, the Hon'ble Supreme Court has observed thus:
64
"Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. "A person accused" need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if 65 such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27."
(underlining supplied)
66. Thus, it is clear that simultaneous or identical disclosures are not an anathema to Section 27 of the Evidence Act. In the instant case, the evidence produced by the prosecution clearly goes to show that all the four accused persons made similar disclosures relating to the hiding of the weapons, knowledge of the spot of the offence and the sale of ornaments belonging to the deceased. It is proved that the information given by the accused has led to the discovery of facts which clearly establish the nexus between accused Nos.1 to 4 and the crime in question.
67. We are aware of the position of law that the discovery of the material objects by themselves would not automatically lead to the conclusion that the offence was committed by the accused. In OMA ALIAS OMPRAKASH AND 66 ANOTHER Vs STATE OF TAMIL NADU, 2013 AIR SCW 529, the Hon'ble Supreme Court has held that:
"With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution."
68. In the instant case, as we have discussed above, it is proved in evidence that M.Os.16 and 17 were forwarded to the Victoria Hospital and Dr.S.B.Patil examined the weapons and gave his opinion as per the Ex.P14. No doubt, the FSL report points out that the blood group of the blood stains found thereon could not be determined as the test was inconclusive, but that by itself cannot be a reason to hold that the said weapons are in no way connected to the murder of the deceased. As it is proved by the prosecution 67 that M.Os.16 and 17 were recovered at the instance of the accused and the same having been recovered from the place near to the spot of occurrence and PW-14 who examined them in Court and having deposed that the said injuries found on the deceased could be caused by assault with the said weapons, we are of the clear view that the prosecution has established a close link between discovery of the material objects and its use in the commission of the offence. As a result, we hold that the prosecution has conclusively established all the four circumstances which cumulatively lead to the inevitable conclusion that accused Nos.1 to 4 alone were the perpetrators of the crime.
69. In SANWAT KHAN AND ANOTHER Vs. STATE OF RAJASTHAN, AIR 1956 SC 54, the Hon'ble Supreme Court has held as under:
"In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been 68 committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.
The above view is followed in the later judgment rendered by the Hon'ble Supreme Court reported in the case of RAJ KUMAR ALIAS RAJU -V- STATE OF UTTARANCHAL, (2008) 11 SCC 709 and RAJ KUMAR ALIAS RAJU -V- STATE (NCT OF DELHI), AIR 2017 SC 614, wherein it is observed thus:
"12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation;
but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming."69
70. In the above cases, it is seen that the prosecution had proved only the circumstance of the recovery of the stolen property as the prime circumstance to implicate the accused and in that background, the Hon'ble Supreme Court had found it appropriate to convict the accused therein under sections 380 and 392 Indian Penal Code. Whereas in the instant case, as we have discussed above, apart from the recovery of golden ornaments, prosecution has convincingly proved three other circumstances, viz., theft of the golden ornaments at the time of the murder, recovery of the said ornaments at the instance of accused Nos.1 to 4, recovery of the weapons used for the commission of the offence and the conduct of the accused in pointing out the place of occurrence. In the above decisions, it has been held that the charge of murder cannot be brought home unless there is some evidence to show that robbery and the murder occurred at the same time. The circumstances proved in this case, undoubtedly, establish that the murder and the robbery have taken place at the same time. We have discussed at length the evidence of 70 PW-1 and other witnesses who have unequivocally stated before the Court that during the murder of the deceased, the gold ornaments worn by her were found missing. It is also proved by the prosecution that the very same articles were recovered from the possession of the accused. The accused did not furnish any explanation for the possession of the said ornaments belonging to the deceased. Coupled with the above circumstances, the recovery of the weapons clinchingly establish that the injuries found on the deceased were caused with M.Os. 16 and 17. Added to that, knowledge and conduct of the accused in pointing out to the place of occurrence completes the chain of circumstances establishing the complicity of accused Nos.1 to 4 in the act of robbery and murder of the deceased. The prosecution therefore has conclusively proved all the above circumstances which in our opinion lead to the guilt of accused Nos. 1 to 4 beyond all reasonable doubt. The decisions relied on by the learned counsel for the appellants-accused are therefore distinguishable on the facts of the present case.71
71. In the case in hand, the accused were charged under Section 396 read with Section 34 of IPC. The Trial Court has held that the facts proved against the accused constitute the offence under Section 396 of the IPC. This finding in our opinion is contrary to the provisions of section 396 of IPC. As per section 396 of Indian Penal Code, in order to constitute the offence of dacoity with murder, any one of the five or more persons should commit murder while committing the dacoity. Therefore, participation of five or more persons is a sine qua non to maintain the charge under Section 396 of IPC. In the instant case, none of the witnesses have spoken about the presence or participation of five or more persons either in the act of murder or in the commission of robbery. Even though charges were framed against accused Nos.1 to 5, 6 to 9 under Section 396 of the IPC, the Trial Court has acquitted accused Nos.6, 7 and 8 on the ground that there is no evidence to prove the ingredients of the offence against these accused Nos.6, 7 and 8. The Trial Court has not recorded any finding to the effect that in addition to accused 72 Nos.1 to 4, other accused also participated in the commission of the crime in question. The circumstances proved by the prosecution, as discussed above, establish the involvement of only accused Nos.1 to 4. Therefore, the conviction recorded against accused Nos.1 to 4 under section 396 of the IPC and the consequent death sentence awarded against them cannot be sustained. Hence, the conviction of accused Nos.1 to 4 under section 396 r/w. 34 of Indian Penal Code and the death sentence imposed against them deserves to be set aside.
72. In the light of the conclusions arrived at by us, in our considered opinion, the facts proved by the prosecution clearly attract the offence under Sections 390 and 394 read with Section 34 of the Indian Penal Code. Section 390 reads as under:
390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the 73 offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--
Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Sections 394 of Indian Penal Code reads that:
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.74
73. Under Section 394 of Indian Penal Code, not only the person who actually causes hurt, but his associates also would be equally liable to the act by fiction of Law. The expression "if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other persons jointly concerned in committing or attempting to commit such robbery, shall be punished"
brings within its purview all other accused involved in the robbery. As the prosecution has established beyond reasonable doubt that accused Nos.1 to 4 have committed robbery of the ornaments of the deceased and in committing robbery have also caused her death, we are of the view that accused Nos.1 to 4 are guilty for the offence punishable under Section 394 of IPC., Accused Nos.1 to 4 are therefore liable for conviction under section 394 read with Section 34 of Indian Penal Code.
74. We have also heard the learned counsel for the accused and the learned SPP on the sentence. The learned counsel for the appellants/accused Nos.1 to 4 plead that the accused have already undergone custody for more than 16 75 years from the date of their arrest and at the time of arrest, all the accused were of young age and therefore having regard to the above circumstances, in the interest of justice, the period of custody already undergone by them be set off towards the imprisonment to be awarded for the offence under section 394 read with Section 34 of Indian Penal Code.
75. We have considered the submissions. We do not find any good reason to take a lenient view in the matter. The material on record indicate that the accused have committed a ghastly and gruesome murder in a highly depraved manner. The facts proved in evidence go to show that the accused murdered an innocent aged lady only to rob her valuables. It is a clear case of murder for gain. The manner in which the accused have inflicted injuries on the victim indicate the pervert and diabolical tendencies of the accused. That apart, the prosecution has furnished statistics which go to show that the accused were involved in similar offences for which they have been either convicted or are serving sentences. Therefore, we do not find any reason to 76 show leniency to the appellants. On the other hand, having regard to the facts and circumstances of this case, we are of the opinion that the ends of justice would require that maximum punishment prescribed under section 394 Indian Penal Code in awarded to the accused, as the fact situation of this case requires that the sentence awarded to the accused should serve as a deterrent. It is also noticed that several cases are pending against the accused before this Court wherein it is alleged that the accused have been attacking helpless lonely womenfolk and have been committing ghastly murders by inflicting injuries inhumanly without showing any mercy whatsoever to the victims. Hence, we are of the view, that the accused do not deserve any sympathy at the hands of this Court. For all these reasons, maximum punishment prescribed under Section 394 Indian Penal Code deserves to be awarded on the appellants/accused No.1 to 4. Hence the following order:-
ORDER
1. Criminal Appeal Nos.799 of 2011 and 637 of 2012 are allowed-in-part.77
2. The conviction of accused Nos.1 to 4 under Section 396 of Indian Penal Code and the consequent imposition of death sentence passed by XXXIV Addl. City Civil & Sessions Judge(Special Court), Central Prison, Parappana Agrahara, Bengaluru in S.C.No.443 of 2001 and S.C.No.55 of 2004 is set-aside.
3. The accused Nos.1 to 4 are held guilty of the lesser offence punishable under Section 394 read with Section 34 of Indian Penal Code and are accordingly convicted for the said offence. The accused Nos.1 to 4 are sentenced to undergo rigorous imprisonment for life and a fine of Rs.25,000/- each for the offence under section 394 read with Section 34 Indian Penal Code.78
4. Accused Nos. 1 to 4 are entitled for the benefit of set off as provided under Section 428 of Code of Criminal Procedure subject to the provision contained in Section 433-A and provided that orders have been passed by the appropriate authority under Section 432 or Section 433 of the Code of Criminal Procedure.
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5. Criminal Referred Case No.14 of 2010 stands rejected in terms of the above order.
SD/- SD/-
JUDGE JUDGE
*pl/mn/ln.