Karnataka High Court
Ramesh S/O Bairuba Pawar vs The State Of Karnataka on 1 June, 2022
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 1ST DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR.JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100107 OF 2018
C/W
CRIMINAL APPEAL NO.100043 OF 2020
IN CRL.A. NO.100107/2018:
BETWEEN
RAMESH
S/O BAIRUBA PAWAR
AGE: 25 YEARS,
R/O: KILLA ONI,
R/O BAGALKOT,
TQ & DIST: BAGALKOT
...APPELLANT
(BY SRI. GOURISHANKAR H. MOT, ADVOCATE)
AND
THE STATE OF KARNATAKA,
BY ITS DEPUTY SUPERINTENDENT
OF POLICE, BAGALKOT,
NOW REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL.SPP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 07.03.2018 PASSED BY THE
LEARNED II ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT IN S.C.NO.35/2009 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 148, 400, 395, 396,
397, 302, 307 R/W SEC 149 IPC RESPECTIVELY AND ACQUIT
THE APPELLANT / ACCUSED NO.6 FOR CHARGES LEVELLED
AGAINST HIM.
IN CRL.A. NO.100043/2020:
BETWEEN
BASAVARAJ
S/O YAMANAPPA DIGGI,
AGE: 23 YEARS,
R/AT: NEAR WATER TANK,
BAGALKOTE
...APPELLANT
(BY SRI. T.M.NADAF AMICUS CURIAE, ADV.)
AND
THE STATE OF KARNATAKA
NAVANAGAR POLICE STATION,
BAGALKOTE
NOW REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD
DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 07.03.2018 PASSED BY THE
LEARNED II-ADDL. DIST. & SESSIONS JUDGE, BAGALKOT IN
S.C. NO.35/2009 FOR THE OFFENCES PUNSHABLE UNDER
SECTIONS 143, 147, 148, 400, 395, 396, 397, 302, 307 READ
WITH SECTION 149 OF IPC RESPECTIVELY AND ACQUIT THE
APPELLANT/ACCUSED NO.2 FROM THE CHARGES LEVELED
AGAINST HIM.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 04.02.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:
3
COMMON JUDGMENT
Being aggrieved by their conviction and sentence for
the offences punishable under Sections 143, 147, 148,
400, 395, 396, 397, 302, 307 read with Section 149 of the
Indian Penal Code, 1860 (hereinafter referred to as "IPC"
for short), appellants who are respectively arraigned as
accused Nos. 5 and 2 have filed these appeals under
Section 374(2) of Code of Criminal Procedure, 1973
(hereinafter referred to as "CrPC" for short).
2. Vide impugned Judgment and order, accused
Nos.1, 2 and 5 are convicted for the offences punishable
under Sections 143, 147, 148, 400, 395, 396, 397, 302,
307 read with Section 149 of IPC. Accused Nos.3 and 6 are
acquitted. The case against accused No.4 is abated.
3. For the sake of convenience the parties are
referred to by their rank before the trial Court.
4. It is the case of the prosecution that accused
Nos.1 to 6 are habitually involved in henious offences such
as robbery and murder and for the said purpose on
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29.10.2008, at 10.00 p.m., in front of Natural Stones
Company situated at Roop Land, Bagalkot, formed
themselves into an unlawful assembly and after performing
Deepavali Padya pooja in their shop when deceased Kiran
Kumatagi and his father Basavarajappa Kumatagi were
proceeding in Car No.KA 25 N 2839 along with the Silver
Pooja articles and cash of Rs.11-12 lakhs, accused Nos.1,
2 and 5 waylaid them on motor cycle No.KA 47 E 4707 and
accused Nos.3, 4 and 6 came on motor cycle No.AP 28 AA
4879 which was stolen by accused Nos.3 and 6 from their
behind. In order to stop Car No.KA 25 N 2839, accused
No.1 burnt crackers on the road. When deceased Kiran
Kumatagi stopped the car, accused No.2 Basavaraj Diggi
assaulted Kiran Kumatagi with a dagger (dA¨É) on his neck
causing grevious injury, accused No.6 Basavaraj Rugi
blocked the back portion of the car with the motor bike.
Accused No.1 to 6 assaulted both Kiran Kumatagi and
Basavaraj Kumatagi with dagger, knife, club and chopper
as a result of which Kiran Kumatagi died on the spot.
5
5. It is further alleged that accused persons
robbed deceased Kiran Kumatagi and Basavaraj Kumatagi
of Silver Pooja articles, cash of Rs.11-12 lakhs, Titan watch
and gold neck chain, which Kiran Kumatagi was wearing.
In the meanwhile, when PW-14 Ramanna Banakar came
on motor bike No.KA 29/2384 to the said spot, accused
persons assaulted him with the deadly weapons and
caused grevious injuries. Similarly, accused persons
assaulted PW-15 Manjunath Konnur who was attending
nature's call by the side of the road with deadly weapons
and caused simple injuries. While running away from the
place of occurrence, accused Nos.3 and 6 left motor bike
No.AP 28 AA 4879 as it did not start and sped away on the
motor bike No.KA 29/2384 belonging to PW-14 Ramanna
Banakar and left it on the main gate of Kumareshwara
Hospital.
6. It is further alleged that by furnishing false
names and address, accused persons obtained and were
using cell phones bearing No.9972353990 (IMEI Set
No.352908028269180), cell No.9964881992 (IMEI Set
No.35669701063063) cell No.9611031994 (IMEI
6
No.357593005912450) cell No.9731100894 (IMEI
No.352908028269180).
7. Through investigation, the Investigating Officer
was able to recover a sum of Rs.10,97,600/-, gold and
silver articles worth Rs.23,860/- from the Accused and
thereby accused persons have committed offences
punishable under Sections 147, 148, 400, 396, 397, 394,
302, 307, 419, 465, 468, 471A read with Section 149 of
IPC.
8. During the pendency of the case accused No.4
died and as such, the case against him is abated (order
sheet dated 17.9.2009).
9. Charge is framed against accused Nos.1 to 3, 5
and 6 for the offences punishable under Sections 143, 147,
148, 400, 395, 396, 302, 307, 395, 396, 397, 402, 307
read with Section 149 of IPC. They have pleaded not guilty
and claimed trial.
7
10. In support of the prosecution case, PWs.1 to
33 are examined, Exs.P1 to 87 and MOs.1 to 80 are
marked.
11. During the course of their statement under
Section 313 of Cr.P.C., accused Nos.1 to 3, 5 and 6 have
denied the incriminating evidence. They have not chosen
to lead defence evidence. However, they have got marked
portion of the statement of PW.2 and 19 as Ex.D1 to D4.
12. Challenging the impugned Judgment, order of
conviction and sentence, the learned counsel representing
accused Nos.2 and 5 submits that the accused are
innocent of the offences alleged. The impugned order of
conviction and sentence is against law, well established
procedure, facts and probabilities of the case. The trial
Court has erred in not framing proper charges and failed to
analyze the evidence on record, which is full of omissions,
contradictions, unreliable and artificial evidence.
13. They would further submit that the evidence
on record and facts does not attract any of the ingredients
of the alleged offences. The trial Court has made an
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apparent error overlooking the major discrepancies in the
evidence which disproves the prosecution case or at least
doubtful. The identity of the accused persons and their
involvement in the alleged offences is not established.
There is nothing on record to connect them to the alleged
crime. There is no iota of evidence to connect the accused
persons with the crime. At the time of evidence, CW-66
Sri.I.A.Patil, Dy.S.P was no longer alive and as such
prosecution has examined PW-33, who was the writer to
prove the investigation conducted by CW-66. However, no
documents are produced to show that PW-33 was working
as writer under CW-66.
14. During the course of statement under Section
313 Cr.P.C, incriminating evidence is not properly referred
to accused Nos.2 and 5 and as such that portion of the
evidence is inadmissible and prays to allow the appeals
and set aside the conviction and sentence of accused
Nos.2 and 5.
9
15. In support of arguments on behalf of the
accused Nos.2 and 5 the learned counsel have relied upon
the following decisions:
(i) LAWS(SC) 1993 102
Prem Vs State of Maharashtra (Prem's case)
(ii) LAWS(SC) 2004 11 49
Munshi Singh Gautam Vs State of Madhya Pradesh
(Munshi Singh's case)
(iii) LAWS(SC) 2008 4 102
Raj Kumar @ Raju Vs State of Uttaranchal
(Raj Kumar's case)
(iv) LAWS(SC) 2019 2 56
Mala Singh And Others Vs
State of Haryana (Mala Singh's case)
(v) Crl.A.No.100116 of 2019 c/w
Crl.A.No.100103 of 2019 &
Crl.R.C.No.100001 of 2019
Rebanna & Another Vs State of Karnataka
(Rebanna's case)
(vi) Crl.A.No.1903/2019
Nagendra Sah Vs The State of Bihar
(Nagendra Sah's case)
(vii) 1991 (O) MPLJ 878
Sakariya S/O Mithoo Vs State of Madhya Pradesh
On 16 March, 1989 (Sakariya's case)
(viii) Crl.A.No.937 of 2005
State of Rajasthan Vs Talevar & Anr.
(Talevar's case)
(ix) (2008) 11 SCC 709
Raj Kumar Alias Raju Vs State of Uttarkhand
(Rajukumar @ Raju's case)
10
(x) (2017) 11 SCC 160:(2017) 4 SCC (Cri) 237
Raj Kumar Alias Raju Vs State (Nct of Delhi)
(NCT of Delhi's case)
16. On the other hand, the learned Additional
State Public Prosecutor supported the impugned Judgment
and order of conviction. He further submits that having
regard to the nature of the offences alleged, the
involvement of accused persons is proved through
recovery of the material objects. Based on the oral and
documentary evidence on record, the trial Court has rightly
convicted accused No.1, 2 and 5. No justifiable grounds
are made out to interfere with the impugned Judgment,
order of conviction and sentence and prays to dismiss the
appeal.
17. In support of his arguments, the learned State
Public Prosecutor has relied upon the following decisions:
(i) (2001) 6 SCC 296
Shri Bhagwan Vs State of Rajasthan
(Shri Bhagwan's case)
(ii) (1973) 1 SCC 202
Saktu & Another Vs State of Uttar Pradesh
(Saktu's case)
11
(iii) (1998) 3 SCC 625
Ronny Alias Ronald James Alwaris & others Vs
State of Maharashtra
(Ronny's case)
18. We have heard elaborate arguments of both
sides and perused the record.
19. The incident in question has taken place on
29.10.2008. It was a Deepavali Balipadyami day, when
many devout Hindus perform Lakshmi pooja in their
houses and shops, so that Goddess Lakshmi bless them
with prosperity. The evidence of PW-10 - Basavarajappa
Kumatagi who is injured in the incident and whose son
Kiran Kumatagi was killed has deposed with regard to the
incident. PW-14 Ramanna Banakar and PW-15 Manjunath
Konnur are unfortunate victims. According to the
prosecution, they have come to the spot at the exact time
when PW-10 Basavarajappa Kumatagi and deceased Kiran
Kumatagi were being assaulted, which is a kaccha road
and were relieving themselves. They were also assaulted
by the accused persons. Since the motor cycle on which
the three of the accused persons had come to the spot
12
following the victim's car did not start, they took away the
motor cycle of PW-14 Ramanna Banakar and sped away
from the spot.
20. PW-10 Basavarajappa Kumatagi has spoken to
about the said incident. Though in the examination-in-chief
he has given the date of incident as 30.10.2008, the
accused have not disputed that according to the
prosecution the incident has taken place on 29.10.2008. It
is relevant to note that at the time of giving evidence,
PW-10 Basavarajappa Kumatagi was aged 78 years. He
has given evidence after lapse of 9 years and
consequently, there may be a lapse in mentioning the date
of the incident. However, it will not go to the root of the
prosecution case. His evidence establish the fact that at
the relevant point of time, he and his two sons viz., PW-2
Ravi Kumatagi and deceased Kiran Kumatagi were running
two shops in the complex belonging to them on the
Railway Station Road, selling TVS Motor cycle, TV and
mobiles.
13
21. PW-10 has deposed that on the ill fated night,
after finishing the business, they locked the shop and he
along with deceased Kiran Kumatagi were carrying cash of
Rs.10-12 lakhs which was the business done on that day
along with the silver pooja articles. They were proceeding
in their car. While deceased Kiran Kumatagi was driving
the car, he was sitting in the left front seat. They had kept
the cash and silver articles in between them. At around
10.00 p.m. when their car left Belagavi-Bagalkot Main
Road and entered the kaccha road, observing crackers
being bursted on the road, deceased Kiran Kumatagi
stopped the car. PW-10 has stated that it was dark and he
heard the cry of Kiran Kumatagi and before he could look
at him and know what is happening, someone assaulted on
his left hand and suddenly, he fell out of the car when the
door opened. Hearing cries, the surrounding people as well
as their family members came to the spot. He was shifted
to the hospital. After 5-6 days through the Swamiji of their
family, he came to know that Kiran Kumatagi succumbed
to the injuries sustained in the said incident and that the
cash as well as the silver articles were robbed.
14
22. The evidence of PW-14 Ramanna Banakar
prove that he is having garden land in Veerapura Village,
while he is residing at Bagalkot near KEB. He is owning
Hero Honda motor cycle bearing registration No.2384 (he
is unable to state the entire registration number). His
evidence reveal that on the ill fated night, at around 9.00
p.m. he was proceeding to go to his garden land and when
he came near Veerapura Cross, someone assaulted him, as
a result of which he lost conscious and his motor cycle was
taken away. Later on he got the motor cycle released to
his interim custody.
23. The evidence of PW-15 Manjunath Konnur
reveal that he was an employee of Vijaya Karnataka
Printing Press, which is situated abutting the place of
occurrence. Unfortunately, at the time of incident, he had
come out of the press premise to answer nature's call and
at that time someone assaulted him on his head, as a
result of which he lost conscious. He re-gained conscious
at the hospital. The testimony of PW-10, 14 and 15
establish the fact that on 29.10.2008, at around 10.00
p.m, when the deceased Kiran Kumatagi and PW-10
15
Basavarajappa Kumatagi reached the place of incident,
they were way laid and robbed of the cash and silver
articles. PWs-14 and 15 who had unfortunately come to
the spot to relieve themselves were also assaulted. After
the incident when the motor cycle on which three of the
accused were following the car of the deceased did not
start, they forcibly took away the motor cycle belonging to
PW-14 and left the place.
24. It is pertinent to note that none of these
witnesses have identified the accused persons. Prosecution
has never claimed that these witnesses were able to
identify the persons who assaulted them. It is the specific
case of the prosecution that since the date of incident was
the next day of new moon i.e., 'Amavasya', it was dark. At
the place of occurrence, there were no lights available. The
incident has taken place suddenly within a fraction of time.
25. The accused persons assaulted PW-10,
deceased and relieved them of their valuables and cash
and while they were in the process, when PWs-14 and 15
who happened to be at the place of incident, they were
16
also assaulted and within no time, the accused persons left
the place of incident. Therefore, rightly PWs-10, 14 and 15
had no opportunity to see the accused persons and identify
them. The learned counsel for accused have vehemently
argued that the concerned police have not conducted Test
Identification Parade. The prosecution has specifically
claimed that due to the darkness and the manner in which
the incident has taken place suddenly, neither the
deceased nor the injured had opportunity to see the faces
of their assailants, there was no occasion for the
Investigating Officer to conduct TI Parade. Though the
defence has made an unsuccessful attempt by suggesting
that light was available as it was a Deepavali day and
there were lightings, the sketch as well as the photographs
of the place of incident reveal that it is a stretch of kaccha
road in a new layout abutting a compound on one side and
there are no residential houses on the other side.
26. Having regard to the fact that the incident has
taken place in a flash and after assaulting the deceased
and PW-10, 14 and 15, the accused persons have left
place after collecting the cash and silver articles and when
17
one of the motor bikes brought by them did not start they
left it and took away the motor cycle of PW-14, the
witnesses had no opportunity to see the accused persons.
Therefore rightly the investigation officer has not chosen to
conduct any TI Parade. In every case of assault, dacoity
or robbery, etc., the holding of TI parade is not necessary.
TI parade is conducted only when there is evidence to
show that the assailants were previously known or when
injured and the eye witnesses have seen the assailants
and the Investigating Officer wants to make sure that
investigation is being conducted against the persons who
are actually involved. TI parade is not a substantive
evidence. It is the identification of the accused before the
Court which is substantial piece evidence. Therefore, the
argument of the defence counsel that in this case, no TI
parade is conducted would not enure to the benefit of the
accused.
27. Rightly, PWs-10, 14 & 15 have not identified
the accused persons before the Court. Having regard to
the fact that entire case of the prosecution is based on
recovery of the stolen articles at the instance of the
18
accused persons, the non identification of the accused
persons would not go to the root of the prosecution case.
Thus, the evidence of PWs-10, 14 & 15 establish the fact
that on 29.10.2008 at around 10.00 PM, at the Veerapura
cross that the accused persons assaulted and robbed PW-
10 and deceased Kiran Kumatagi of the cash and silver
articles and left the place.
28. PW-2 Ravi Kumatagi and PW-17 Mahanthesh
Kumatagi are the sons of PW-10 Basavarajappa Kumatagi
and brothers of deceased Kiran Kumatagi. Their evidence
also supports the case of the prosecution with regard to
the deceased and PW-10 Basavarajappa Kumatagi having
left the shop along with the cash and silver articles. After
coming to know about the incident through telephonic
message, immediately they reached the spot. PW-2 Ravi
Kumatagi has deposed that they were running a two
wheeler and cell phone shop situated on the old Railway
Station Road which is in old Bagalkot while their residence
is at Roop Land, near Vidyagiri, which is in old Bagalkot.
His evidence established the fact that on 29.10.2008 after
finishing the business, his brother Kiran Kumatagi and
19
father Basavarajappa Kumatagi left the shop in their car by
collecting the cash in a sum of Rs.10-12 lakhs along with
pooja articles in their Tata Indica car. At around 10.15 PM
while he was in the market, he came to know through his
brother i.e., PW-17 Mahanthesh Kumatagi that somebody
assaulted his brother and father and that they are
admitted to Kerudi Hospital. Immediately on his motor
cycle he went down the road leading to their house and
near National Stones shop compound, he found the car
with Kiran sitting in the driver's seat with injuries on his
neck and body and he had died at the spot. From the
people who had gathered at the spot he came to know that
his father was taken to the hospital and PW-14 Ramanna
Banakar and PW-15 Manjunath Konnur were also assaulted
at the spot and they were also shifted to the hospital.
Thinking that his brother may be still alive, he shifted
Kiran Kumatagi in another car to the hospital.
29. In this regard the evidence of PWs-2, 16 and
17 is relevant and supports the case of the prosecution.
PW-16 Vijay Vali is having his residence in the Roop Land
area. He is known to the family of deceased Kiran
20
Kumatagi. PW-2 Ravi Kumatagi and PW-17 Mahantesh
Kumatagi are the other sons of PW-10 Basavarajappa
Kumatagi and brothers of deceased Kiran Kumatagi. The
evidence of PW-17 Mahantesh Kumatagi reveal the fact
that he is running a software business at Hubli and as
29.10.2008 was a Balipadyami festival after the pooja in
his shop he had come to Bagalkot. During his cross
examination he has denied that on the date of incident he
was not present at Bagalkot. His presence at Bagalkot and
more particularly at the scene of occurrence immediately
after the incident is spoken to by PW-16 Vijay Vali and PW-
2 Ravi Kumatagi also. The testimony of PW-16 and 17
prove that a short while after the incident when they
reached the spot they found Kiran Kumatagi injured sitting
in the driver seat of the car. They shifted PW-10
Basavarajappa Kumatagi, Kiran Kumatagi and another
injured to the hospital. PW-15 Manjunath Konnur was
taken to hospital by others.
30. The evidence of PW-2 Ravi Kumatagi proves
that on the date of incident at around 9.00 PM his father
PW-10 Basavarajappa Kumatagi and deceased Kiran
21
Kumatagi left the shop carrying around Rs.10-12 lakhs of
cash which was the collection of business and the silver
pooja articles with them in their car. At around 10.15 PM
while he was in the market his brother i.e., PW-17
Mahanthesh Kumatagi informed him about the assault on
their father and brother. By the time he reached the spot,
they had shifted the injured to the hospital.
31. Thus through the testimony of PWs- 2, 10, 14
to 17, the prosecution has proved that on 29.10.2008,
while deceased Kiran Kumatagi and PW-10 Basavarajappa
Kiran Kumatagi were proceeding in their car, they were
way laid, assaulted and PWs-14 and 15 who unfortunately
happened to be present at the said spot were also
assaulted and in addition the motor bike belonging to PW-
14 Ramanna Banakar was also taken away by the
assailants.
32. In respect to the incident PW-2 Ravi Kumatagi
has lodged the complaint as per Ex.P2. It is argued, that in
the complaint the fact of deceased Kiran Kumatagi and
PW-10 Basavarajappa Kumatagi in addition to cash were
22
also carrying silver pooja articles with them and the
persons who assaulted them have also robbed them of the
silver articles, watch and gold chain is not stated. It is
pertinent to note that PW-2 lodged the complaint at 00.15
hours of 30.10.2008. The incident has occurred at about
10.00 p.m. and after coming to know about the incident
through telephonic message, he reached the spot and
thereafter visited the hospital. After coming to know that
Kiran Kumatagi has died and the remaining injured were
under treatment, he lodged the complaint. It is to be
remembered that after leaving the shop, within a span of 1
hour, his brother and father were brutally assaulted, in
which his brother died. In spite of such traumatic
experience, he has filed the complaint at the earliest
available opportunity and therefore, his may have failed to
mention about the silver pooja articles, gold chain and
watch of deceased in the complaint would not go to the
root of the prosecution case. A complaint cannot be
expected to be an encyclopedia of the case of the
prosecution to include every detail.
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33. PW-2 is also cross-examined to the effect that
in the complaint he has not stated the names, address and
identity of the accused persons. It is nobody's case that
the persons who committed the offence in question were
known. Consequently, there was no occasion for the
complainant to disclose their names and other details.
Having regard to the fact that during the investigation cash
to the tune of Rs.10,97,600/- is recovered through all the
accused persons supports the contention of the
complainant that on the date of incident, deceased Kiran
Kumatagi and PW-10 Basavarajappa Kumatagi were
carrying cash of Rs.11-12 lakhs with them. In fact a
suggestion is made to PW-2 that on that day there was
heavy transaction due to sale in their shop. It is also
relevant to note that it is a common belief among Hindus
that purchasing new articles during Deepavali is very
auspicious. In fact there would be heavy discount given for
the sale of vehicles and other articles during Deepavali
festival. This also supports the case of the prosecution that
on the date of incident deceased Kiran Kumatagi and PW-
10 Basavarajappa Kumatagi, were in possession of heavy
24
cash and silver articles. In fact the evidence of PW-2
regarding identity of the silver articles, watch, gold chain,
pertaining to deceased Kiran Kumatagi also prove the
contents of the complaint. The accused have no
explanation as to how they came in possession of such
heavy cash and other valuables which were recovered at
their instance. They are not claiming the same as
belonging to them.
34. During the pendency of the proceedings, the
seized cash was given to the possession of PW-2. After
demonetization, with the permission of the Court, he has
exchanged the same through RBI by producing the
photographs of the seized cash to the Court. Before the
Court he has identified the MO-1 Silver Kalasa (PÀ¼¸
À À) with
Thene (vÉ£)É , MO-2 two silver lamps, MO-3 a pair of Bille
(©¯Éè), MO-4 a gold chain which is cut and MO-5 a Titan
watch. In fact he got released MOs-1 to 5 also to his
interim custody. Of course, accused have no claim to these
articles.
25
35. Regarding identity of these articles PW-2 has
been cross-examined wherein he has clearly stated that as
the silver articles bear their names, he is able to identify
them. When suggested that these articles does not carry
their names, PW-2 has explained that on MO-1, the name
of his mother and father is engraved and MOs-2 to 4 are
part and parcel of MO-1. Regarding watch at MO-5, he has
deposed that since his brother i.e., deceased Kiran
Kumatagi was wearing it, he is able to identify it. Thus,
through the evidence of PWs-2, 10 & 14 to 17 prosecution
has proved the incident and also the fact of complaint and
identity of the seized cash and silver articles as belonging
to PWs-2, 10 and deceased Kiran Kumatagi.
36. PW-1 Sri. Shrishaila Shettar and PW-11 Anand
Jigajinni are witnesses to the spot mahazar Ex.P1. Their
evidence prove the fact that when Ex.P1 was drawn, the
TATA Indica car, a knife were found at the spot. The
services of Dog Squad was also pressed into service. Their
evidence is not seriously disputed by the defence. In fact
there is nothing to dispute their evidence with regard to
place of incident.
26
37. Ex.P4 is the seizure mahazar in respect of car
and other articles found at the place of incident. The three
photographs captured at the spot are together marked as
Ex.P5. The evidence of PW-3 Mallikarjun Shasanur prove
the same. He is also a witness to the inquest at Ex.P3, the
mahazar at Ex.P6 through which the clothes of Kiran
Kumatagi were seized, the mahazar at Ex.P7 through
which the Hero Honda motor cycle which was found at the
spot were seized. With regard to the details of Ex.P4, he is
treated as hostile and cross-examined, wherein he has
admitted that through the said mahazar, a black colour
motor cycle, two bamboo clubs, blood stained soil,
ordinary soil, scrapings of blood stains on the adjoining
compound, bursted cracker papers and the blood stained
clothes of deceased Kiran Kumatagi were also seized. It is
pertinent to note that PW-3 is a witness to a number of
mahazars and he was examined before the Court, after a
gap of nine years and as such it is quite natural for him not
to remember all the details. Though he has been cross-
examined at length nothing material is elicited which would
affect credibility of his evidence.
27
38. It is pertinent to note that in this case the
injury certificates of PW-10 Basavarajappa Kumatagi, PW-
14 Ramanna Banakar, PW-15 Manjunath Konnur and PM
report of deceased Kiran Kumatagi are marked with
consent as Ex.P60 to 64 and as such CWs-47 and 48 are
given up by the prosecution as unnecessary. Before this
Court, the defence counsel have argued that these
witnesses are not examined. When the accused have given
consent for marking these documents, now it is not open
to the defence to raise objection on this aspect. Of course,
there cannot be any objection for the accused with regard
to the nature of injury sustained by the injured as well as
the cause of death of deceased Kiran Kumatagi.
39. Now, it is to be examined whether the
prosecution has proved the recovery of stolen property at
the instance of the accused persons. In this case, in all 6
accused persons are involved. Out of them accused No.4
Nagaraj @ Nagappa Jambagi has died during the pendency
of the trial. The trial Court has acquitted accused Nos.3
and 6 for lack of evidence against them, more particularly
on the ground that the recovery witness regarding seizure
28
of incriminating articles at their instance not supporting
the prosecution case. Accused Nos.1, 2 and 5 are
convicted. Accused No.1 has not challenged his conviction.
40. According to the prosecution accused persons
are involved in several cases of robbery and murder. They
were arrested and so far as this case is concerned at their
instance cash, silver, gold articles and watch belonging to
deceased Kiran Kumatagi PW-10 Basavarajappa Kumatagi
were seized.
41. PW-9 Prakash Bhandari and PW-13 Govardhan
Das Buthada are witnesses to the recovery at the instance
of accused No.5 Ramesh Pawar. They have deposed to this
effect and stated that he led them and Investigating
Officer to his room No.39, situated at Murgod Chal, Near
Jabin College and pointed out cash consisting of Rs.500
and Rs.1000 notes, silver and gold articles and the same
were seized through seizure memo and mahazar at Ex.P39
and 40. They have identified the four photographs
captured at the time of said mahazar as per Ex.P41 to 44.
They have also identified the seized articles at MOs-2, 3
29
and 24 and the accused No.5 before the Court. Even
though these two witnesses have been cross-examined at
length, their credibility is not shaken. Thus, through the
testimony of these two witnesses, the prosecution has
proved the recovery of MOs-2, 3 and 24. Of course, PW-2
Ravi Kumatagi has identified the cash which is recovered in
this case through all the accused persons.
42. It is pertinent to note that CW-66 I.A.Patil, the
then Dy.S.P, Bagalkot Sub-division has conducted the
investigation and made recovery at the instance of accused
persons. During the pendency of the trial, he died.
Therefore, the prosecution has led secondary evidence by
examining PW-33 Virupakshagouda Patil, who was writer
working with CW-66 I.A.Patil. Under Section 32 of the
Evidence Act, the testimony of PW-33 with regard to the
investigation conducted by CW-66 I.A.Patil, who is no
more is admissible. During the course of evidence of PW-
33 the defence has raised objections regarding marking of
documents pertaining to the investigation conducted by
CW-66 I.A.Patil. Under Section 32(2) of Evidence Act,
statements written or verbal of relevant facts made by a
30
person, who is dead or who cannot be found or who has
become incapable of giving evidence or whose attendance
cannot be procured, without an amount of delay or
expenses which under the circumstances of the case
appears to the Court unreasonable, are relevant when they
are made in the ordinary course of business and in
particular in the discharge of professional duty.
43. Therefore, the objections raised by the defence
with regard to marking of documents and signatures
through PW-33 is not tenable. Thus, through the evidence
of PW-9, 13 and 33, the prosecution has proved the
recovery made at the instance of accused No.5 Ramesh
Pawar. Those material objects stolen by the accused
persons and recovered at the instance of accused No.5 and
which are proved to belong to the deceased Kiran
Kumatagi, PW-10 Basavarajappa Kumatagi and PW-2 Ravi
Kumatagi are also identified by PWs-2, 9 and 13.
Therefore, the charge leveled against accused No.5 are
proved beyond reasonable doubt.
31
44. It is argued by the learned counsel for accused
that though charge sheet was filed against 6 persons, only
3 are convicted and as such Section 149 IPC is not
applicable and therefore, conviction of accused Nos.2 and
5 with its aid is not tenable. They have also argued that
PW-10 Basavarajappa Kumatagi only speaks about the
presence of 3 accused persons and as such with the aid of
Section 149 IPC conviction cannot be made.
45. As discussed earlier, the incident has taken
place in the night at around 10.00 p.m. There was no
source of light available. The assault took place suddenly.
The evidence of PW-10 reveal that he heard the moan of
deceased, who was in the driving seat and before he could
look, someone assaulted him and he fell out of the car and
became unconscious. He never had the opportunity to
observe the total number of persons involved in the crime.
However, the investigation and the evidence placed on
record prove the involvement of accused Nos.1 to 6.
Admittedly, accused No.4 died during the pendency of the
trial. The acquittal of accused Nos.3 and 6 is only on the
ground of lack of support by independent witnesses.
32
Therefore, the argument of the defence that the provisions
of Section 149 IPC cannot be pressed into service is not
tenable.
46. Now, coming to the recovery made at the
instance of accused No.2 Basavaraja Diggi. According to
the prosecution a watch, piece of gold chain, blood stained
clothes and a Jambia (eÁA©AiÀiÁ) are recovered at the
instance of accused No.2 Basavaraja Diggi. PW-5 Veeresh
Ronad, PW-8 Anil Kothari and PW-12 Prakash
Nyamagoudar are witnesses to the recovery made at the
instance of accused No.2 Basavaraj Diggi. PW-5 and PW-
12 have not supported the prosecution case. They are
treated as hostile and cross-examined by the prosecution
without any success. However, PW-8 Anil Kothari has
supported the prosecution case and deposed that accused
No.2 took them and the Investigating Officer to his house
No.77, Rajiv Gandhi Ashraya Colony situated at
Navanagar, Bagalkot and produced cash of Rs.95,000/-,
MO-4 gold chain, MO-21 gold ear stud and MO-3 silver
article (a pair of silver Bille). He also produced MO-22
33
blood stained shirt which was kept inside a bag concealed
behind God's photo and they were seized through mahazar
Ex.P22. He has identified four photographs captured at the
time of recovery as per Ex.P23 to 26. He has also
identified accused No.2 Basavaraj Diggi before the Court.
After identifying him, this witness has recollected that
accused No.2 has also produced a knife. Before the Court,
it was removed from the cover and he has identified the
same. It is marked as MO-23.
47. It is pertinent to note that on the date of
examination-in-chief, after observing that this witness has
undergone angioplasty and appears to be exhausted, his
cross-examination was deferred. However, subsequently,
he has not been tendered for cross-examination.
Consequently, the defence more particularly accused No.2
Basavaraj Diggi has lost the opportunity to cross-examine
him. It is pertinent to note that while deferring his cross-
examination the Court has failed to bound him over, so
that on the next date of hearing, it was obligatory on him
to appear on his own without any further notice or
summons. In that event the bench clerk, who write the
34
order sheet would have noted the fact of PW-8 having
bound over and his absence would have come to the notice
of the Court. Having failed to do so, the fact of PW-8 Anil
Kothari not being tendered for cross-examination has
skipped the attention of the Court as well as the
prosecution.
48. It is relevant to note that it is bounden duty of
the prosecution to verify whether all the witnesses are
tendered for cross-examination or not. The learned
Prosecutor should have observed the fact of PW-8 having
not tendered for cross-examination and brought it to the
notice of the Court and requested for issue of summons for
his appearance. In this regard, the prosecution has also
failed in its duty as a result of which valuable evidence in
favour of the prosecution has lost.
49. Moreover as Officers of the Court, the learned
counsel representing the accused persons, more
particularly accused No.2 Basavaraj Diggi were also under
an obligation to bring to the notice of the Court the fact of
PW-8 having not tendered for cross-examination. Though
35
the non tendering of PW-8 for cross-examination was
beneficial to accused No.2, in the light of evidence of
Investigating Officer, the possibility of Court, coming to the
conclusion that the recovery is proved and returned a
verdict of conviction cannot be ruled out. In which event it
is the concerned accused who would be at loss for having
lost opportunity to cross-examine such witness. Therefore,
in all fairness, at least the counsel for accused No.2 should
have brought the fact of PW-8 having not tendered for
cross-examination and insisted upon issuing process for his
appearance.
50. If the conditions specified in Section 32 are
fulfilled, then even in the absence of witness being
tendered for cross-examined, the testimony of PW-8 would
have become admissible. For this reason at least the trial
Court would have ascertained the availability of witness to
give evidence by issuing process. All the three have failed
in their duty to secure the presence of PW-8 for cross-
examination. In the result we hold that the prosecution
has failed to prove the recovery at the instance of accused
36
No.2 Basavaraj Diggi and therefore, he is entitled for
acquittal.
51. PW-30 Dundappa Lakkannavar, PSI has
registered the case. PW-31 Ravindra Shirur, Dy.S.P has
arrested accused No.2 Basavaraj Diggi, accused No.3
Manjunath Binjawadagi and one Dilip Parashuram
Govindakar who is not accused in this case. PW-29
Chidambara Madiwalar, Police Inspector has arrested
accused No.6 Basavaraj Rugi and produced him before the
Investigating Officer. As already noted in view of death of
CW-66 I.A.Patil, PW-33 has given secondary evidence
regarding the investigation conducted by him.
52. We have carefully analyzed the oral and
documentary evidence placed on record by the prosecution
and are of the considered opinion that the prosecution has
proved the charges levelled against accused No.5 Ramesh
Pawar beyond reasonable doubt and as such the appeal
filed by him fails. On the other hand, having not tendered
PW-8 Anil Kothari and thereby not provided accused No.2
an opportunity to cross-examine him, we hold that the
37
charges leveled against him are not proved and as such we
are setting aside his conviction.
53. Now, coming to the citations relied upon by the
learned counsel for accused.
(i) In Prem's case referred to supra, the incident
took place in dark and there was no light and
therefore Court did not believe the prosecution
case that the witnesses were able to identify the
accused. In the present case, though the
incident took place in the dark, prosecution is
not claiming that the witnesses were able to
identify the accused. The entire case of the
prosecution is based on the recovery of the
stolen property at the instance of accused.
Therefore, this decision is not applicable to the
case on hand.
(ii) In Munshi Singh's case referred to supra, the
Hon'ble Supreme Court dealt with the
significance of holding TI Parade and held that
the trial Court ought not to have believed the
testimony of PW-12 therein in the absence of TI
Parade. However, the present case is not based
on the identity of the accused by the witnesses,
but on the recovery of the stolen property at the
38
instance of accused. Therefore, this decision is
not applicable to the case on hand.
(iii) In Rajkumar's case referred to supra, the trial
Court did not record a finding that there were 6
accused persons and out of them, only 4 were
identified and as such the trial Court held that
the offence of dacoity is not proved. In the
present case, the fact of involvement of six
accused is proved by recovery at their instance.
However, out of them one died during the
pendency of the trial, 2 were acquitted for lack
of proof of their involvement on account of
recovery witnesses not supporting.
Consequently, 3 accused persons were
convicted. Therefore, this decision is not
applicable to the case on hand.
(iv) In Mala Singh's case referred to supra, 11
accused were convicted by the trial Court.
However, the High Court acquitted accused
Nos.1 to 6, 10 and 11. It convicted the
remaining accused with the aid of Section 34
IPC. The Hon'ble Supreme Court held that the
High Court is not justified in so doing. In the
present case, the involvement of 6 accused is
established by the prosecution. Therefore, this
decision is not applicable to the case on hand.
39
(v) In Rebanna's case referred to supra, the
Hon'ble Division Bench of this Court remanded
the case to the trial Court to provide prosecution
opportunity to prove its case. This decision is
not applicable to the facts and circumstances of
the present case.
(vi) In Nagendra Sah's case referred to supra, it
was a case of death of the wife due to Asphixia,
whereas the accused projected it as a case of
death due to accidental burns. The Hon'ble
Supreme Court reversed his conviction on the
ground that the prosecution has failed to
discharge its initial burden and Section 106 of
Indian Evidence Act could be pressed into
service only after the initial burden is discharge
by the prosecution. This decision is also not
applicable to the case on hand.
(vii) In Sakariya's case referred to supra, it was a
case of rape and in the absence of chemical
report, the High Court set aside the conviction.
It is not applicable to the facts and
circumstances of the present case.
(viii) The Talevar's case referred to supra deals
with person in possession of stolen articles and
therefore, the Hon'ble Supreme Court held that
presumption of the accused having caused death
40
cannot be raised. However, in the present case
the accused have not taken up the defence that
they are only receivers of the stolen property. In
fact they have not explained their possession of
the cash and valuables belonging to the
deceased. Such being the case they cannot
press into the service this decision.
(ix) In Rajkumar @ Raju's case referred to supra,
the Hon'ble Supreme Court held that where
some of the accused were acquitted on the
ground of their participation not proved, the rest
cannot be convicted with the aid of Section 149
IPC. However, in the present case some of the
accused were acquitted only because the
witnesses to the recovery did not support the
prosecution case. However, there is evidence of
other witnesses to prove their participation
attracting Section 149 IPC. Therefore, this
decision is not applicable to the case on hand.
(x) In NCT of Delhi's case referred to supra, it was
a case of death based on circumstantial
evidence and the accused was given the benefit
of doubt on the ground that charges were not
proved beyond reasonable doubt. However, this
decision is not applicable to the facts and
circumstances of the present case.
41
54. On the other hand in Shri Bhagawan's case
referred to supra by the prosecution, the Hon'ble Supreme
Court confirmed the conviction on the ground that accused
have no explanation for possession the stolen property. In
Saktu's case referred to supra, the Hon'ble Supreme
Court held that merely because some of the accused were
not convicted for want of identification, it is not a ground
to acquit others when participation of more than five
persons is proved. In Ronny's case referred to supra, the
Hon'ble Supreme Court held that when the accused have
no explanation for possessing articles belonging to the
deceased, presumption under section 114 of evidence act
is attracted. These decisions are aptly applicable to the
case on hand. Thus, the decisions relied upon by the
prosecution aids the conviction against accused No.5
Ramesh Pawar. Accordingly, we proceed to pass the
following:
42
ORDER
(i) Crl.A.No.100107/2018 filed by accused No.5 Ramesh Bairuba Pawar is dismissed. His conviction is confirmed.
(ii) Crl.A.No.100043/2020 filed by accused No.2 Basavaraj Yamanappa Diggi is allowed. He shall be released forthwith, if his presence is not required in any other case.
(iii) The registry is directed to return the trial court record along with copy of this judgment.
(iv) We place on record the valuable services rendered by the learned Amicus Curiae. His remuneration is fixed at Rs.15,000/-.
Sd/-
JUDGE Sd/-
JUDGE RR