Sri Prathap vs The State Of Karnataka on 7 October, 2020

[Cites 45, Cited by 0]

Karnataka High Court

Sri Prathap vs The State Of Karnataka on 7 October, 2020

Bench: Aravind Kumar

                            1                    R

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7th DAY OF OCTOBER, 2020

                         PRESENT

       THE HON'BLE MR. JUSTICE ARAVIND KUMAR
                          AND
  THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 CRL.A. NO.633/2014
                         C/W
       CRL.A. NOs.572/2014, 597/2014, 630/2014

IN CRL.A. NO.633/2014:

BETWEEN:

SRI. PRATHAP
S/O SHIVARUDREGOWDA
AGED ABOUT 25 YEARS
OCCUPATION: ACCOUNTANT, BBMP
R/O NO.382 AND 383, MARUTHI
NAGARA, SONNEHAHALLI, ULLAL POST
BANGALORE - 560 056
N/O SANENAHALLI
HELEBEEDU HOBLE, BELUR TALUK
HASSAN DISTRICT.
                                         ...APPELLANT
(BY SRI. RAVI B NAIK, SR. COUNSEL A/W
SRI. K.B. MONESH KUMAR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
REPTD. BY ITS PUBLIC PROSECUTOR
BY RURAL POLICE STATION
CHICKAMGLUR, AMBEDIKAR VEEDI
HIGH COURT BUILDING
BANGALORE - 560 001.
                                        ...RESPONDENT

(BY SRI. VINAYAKA V.S. HCGP)
                            2



     THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE SET ASIDE THE ORDER OF
CONVICTIONS DATED 30.6.2014 AND SENTENCES DATED:
01.07.2014 PASSED BY THE PRL. S.J., CHIKMAGALUR IN
S.C.NO.62/2013 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302 AND 201 R/W 120-B R/W
SEC.34 OF IPC.

IN CRL.A. NO.572/2014:

BETWEEN:

SMT. MEENAKSHI
W/O PRATHAP
AGED ABOUT 24 YEARS
OCCUPATION: HOUSEHOLD WIFE
R/O RAJANASHIRIYURU VILLAGE
HELEBEEDU HOBLE, BELUR TALUK
HASSAN DISTRICT - 573 112.
                                         ...APPELLANT

(BY SRI. R.S. JEETHU, ADVOCATE FOR
SRI. M. NAVEEN KUMAR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
REPTD. BY ITS PUBLIC PROSECUTOR
BY RURAL POLICE STATION,
CHICKAMAGALUR, AMBEDIKAR VEEDI
HIGH COURT BUILDING
BANGALORE - 560 001.
                                      ...RESPONDENT
(BY SRI. VINAYAKA V.S, HCGP)

      THIS CRL.A. FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE INCLUDING THE SENTENCE OF FINE DATED:
30.06.2014 PASSED BY THE PRL. S.J., CHIKMAGALUR IN
S.C.NO.62/2013 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302, 201, 120B R/W SEC.34 OF
IPC. THE APPELLANT/ACCUSED IS SENTENCED TO
                            3

UNDERGO IMPROSONMENT FOR LIFE AND PAY FINE OF
RS.10,000/-, IN DEFAULT TO PAY FINE, HE SHALL
UNDERGO R.I. FOR 1 YEAR FOR THE OFFENCE P/U/S 302
R/W 34 OF IPC.

IN CRL.A. NO.597/2014:

BETWEEN:

SRI. VINAY
S/O GANGADHAR
AGED ABOUT 28 YEARS
R/AT NO.1409, VALAGEREHALLI,
DUBASIPALYA MAIN ROAD, RVCE POST
MYSORE ROAD,
BANGALORE - 560 059.
                                       ...APPELLANT
(BY SRI. SHANKARAPPA, ADVOCATE)

AND:

STATE OF KARNATAKA
RURAL POLICE
CHIKMAGALUR - 560 059.
                                     ...RESPONDENT
(BY SRI. VINAYAKA V.S, HCGP)
      THIS CRL.A. FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED:
30.06.2014 PASSED BY THE PRL. S.J., CHIKMAGALUR IN
S.C.NO.62/2013 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302, 201, 120B R/W SEC.34 OF
IPC. THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO IMPRISONMENT FOR LIFE AND PAY FINE OF
RS.10,000/-, IN DEFAULT TO PAY FINE, HE SHALL
UNDERGO R.I. FOR 1 YEAR FOR THE OFFENCE P/U/S 302
R/W 34 OF IPC.
IN CRL.A. NO.630/2014:
BETWEEN:

1.     PARAMESH K
       S/O KAPANIGOWDA
       AGED ABOUT 26 YEARS
                            4

       OCC: OWNER AND DRIVER OF
       TEMPO TRAVELLER, R/O NO.328
       SANNENAHALLI, MARUTHINAGARA
       BANGALORE - 56.

2.     NARASIMHARAJU
       S/O GANGAIAH
       AGED ABOUT 28 YEARS
       OCC: TAILOR, N.G. CREATION
       GARMENTS, BANGALORE
       R/O CHANNENAHALLI
       MAGADI MAIN ROAD
       TAVAREKERE HOBLI
       BANGALORE SOUTH TALUK - 56
       (NOW IN JUDICIAL CUSTODY
       CENTRAL PRISON, DHARWAD)
                                        ...APPELLANTS
(BY SRI. HASHMATH PASHA, SR. COUNSEL)

AND:

STATE OF KARNATAKA
BY RURAL POLICE
CHIKMAGALUR - 570 120
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
                                        ...RESPONDENT

(BY SRI. VINAYAKA V.S. HCGP)

     THIS CRL.A. FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE ORDER OF CONVICTIONS
DATED: 30.06.2014 AND SENTENCES DATED: 01.07.2014
PASSED    BY   THE    PRL.  S.J., CHIKMAGALUR      IN
S.C.NO.62/2013        -       CONVICTING         THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 302,
201,    120B    R/W      SEC.34   OF      IPC.   THE
APPELLANTS/ACCUSED NOS. 3 AND 4 ARE SENTENCED
TO UNDERGO IMPRISONMENT FOR LIFE AND PAY FINE OF
RS.10,000/- EACH, IN DEFAULT TO PAY FINE, THEY SHALL
UNDERGO R.I. FOR 1 YEAR FOR THE OFFENCE P/U/S 302
R/W 34 OF IPC.
                             5

     THESE APPEALS HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, ARAVIND KUMAR J., DELIVERED
THE FOLLOWING:

                      JUDGMENT

These appeals have been preferred by accused Nos.1 to 5 in S.C.No.62/2013, challenging the judgment of conviction and order of sentence dated 30.06.2014 whereunder appellants-accused Nos.1 to 5 have been convicted for the offence punishable under Sections 302 and 201 read with section 120-B and Section 34 IPC after trial by sentencing them to life imprisonment and to pay fine of Rs.10,000/- each for the offence punishable under Section 302 read with Section 34 IPC, in default, to undergo rigorous imprisonment for one year each; to undergo imprisonment for life and to pay fine of Rs.10,000/- each for the offence punishable under Section 120-B IPC, in default, to undergo rigorous imprisonment for one year each and to undergo rigorous imprisonment for 3 years and to pay fine of Rs.5,000/- each for the offence punishable under Section 201 read 6 with Section 34 IPC, in default, to undergo rigorous imprisonment for six months each.

2. The gist of the prosecution case:

Dead body of Sri Dilip Kumar who is the son of the complainant was found on 14.02.2013 lying near the bridge of Kalsapura with injuries on head and other parts of the body. It was suspected somebody had murdered said person with some motive and had thrown the dead body at the said place and a motor bike was found near the halla. On registration of complaint lodged by mother of deceased, FIR was registered and investigation was commenced. It is the case of prosecution that accused No.5 and deceased were in love and marriage of accused No.5 had been fixed with accused No.1 and on account of deceased inviting accused No.5 to marry him, she was disturbed and felt humiliated. It is also the case of prosecution that accused Nos.1 and 5 thought deceased may become hindrance after their marriage and may create problems during marriage and as such, accused Nos.1 to 4 7 conspired with accused No.5 to eliminate deceased Dilip Kumar. In pursuance of conspiracy between accused Nos.1 to 4, accused No.5 had called the deceased Sri Dileep Kumar on 13.02.2013 over mobile phone to meet her near Basaveshwara temple on Belur-Halebeedu road, on the pretext they can go out together for celebrating Valentines Day and pursuant to said call, deceased came near Basaveshwara temple on his motor bike and as per the conspiracy, accused Nos.1 to 4 in furtherance of their common intention had come in a Scorpio vehicle and accused No.1 got down from the said vehicle and picked up a quarrel with the deceased and assaulted Dileep Kumar on his head with a car Jack - M.O.16, as a result, deceased sustained grievous head injuries and fell down. It is further alleged that accused Nos.1 to 4 had put the deceased in the Scorpio car, went near Halebeedu and also took the motor bike of the deceased and on the way, they purchased two towels from the cloth shop M/s.Panduranga Cloth Emporium, owned by P.W.4, for using the said towel to prevent blood oozing 8 out from the head of the deceased and they had proceeded further towards Kalasapura. It is further case of the prosecution that deceased had succumbed to the said head injury and accused Nos.1 to 4 removed the dead body from the vehicle and laid it on the road near Jodisetuve and ran over the Scorpio vehicle on his head to depict the death was due to a road traffic accident and thereby attempted to destroy the evidence. It was also alleged that motorbike of the deceased was dropped in the ditch below the Jodisetuve and accused persons thereafter had disappeared from the scene of offence.

3. The mother of the deceased namely, Smt.Yashodha had lodged a complaint (typed on computer) on 14.02.2013 with Rural Police Station, Chickmagalur who had come to the spot where the dead body of the deceased was lying and on identifying the dead body, she is said to have lodged the aforesaid complaint alleging that some unknown persons for unknown reasons had assaulted her son on his head and had committed his murder elsewhere and had 9 thrown his dead body on the bridge and the bike was lying in the nearby Halla. Said complaint came to be registered in Crime No.63/2013 for the offence punishable under Section 302 and 201 IPC.

4. The Investigating Officer after registering the FIR had carried out the investigation and had laid the charge sheet for the offence punishable under Sections 302, 120-B, 201 read with Section 34 IPC. The prosecution has come up with the case during trial that accused No.5 was in love with the deceased and they had decided to marry but elders did not approve their relationship on the ground that their horoscope did not match. It is also the specific case of the prosecution that in spite of said resistance, deceased continued to insist accused No.5 to marry him as her (accused No.5) marriage had been fixed with accused No.1 scheduled to be held on 15.02.2013. The further case of the prosecution is that accused No.5 had an apprehension that deceased may become hurdle to her marriage with accused No.1 and thereafter and as such, she had 10 informed accused No.1 and together they hatched a plan to eliminate Sri Dileep Kumar.

5. The further case of the prosecution is that accused No.1 conspired with accused Nos.2, 3 and 4 in furtherance of their common intention to commit the murder of Sri Dileep Kumar had left Bengaluru in Scorpio vehicle bearing No.KA-02-Z-8658 on 13.02.2013. Accused No.1 with the help of accused No.5 managed to call the deceased to come near Basaveshwar temple on 13.02.2013 and after securing the presence of deceased near Basaveshwar temple, they found Dileep kumar was waiting and on reaching the spot accused No.1 had assaulted the deceased on his head with a car jack - M.O.16 and on account of deceased profusely bleeding, accused No.3 brought two towels from nearby shop from Halebeedu to prevent profuse bleeding. Deceased had succumbed to the head injury. Accused Nos.1 to 4 to destroy the evidence took the deceased in the Scorpio vehicle and then created a scene as if the deceased died on account of a road traffic accident.

6. As accused persons did not plead guilty to the charge and the defence being one of total denial, trial came to be conducted and in order to drive home the guilt of the accused, prosecution examined in all 16 witnesses as P.Ws.1 to 16 and got marked the documents as Exs.P-1 to P-66 and got marked M.Os.1 to

21. Defence got marked documents Ex.D-1 to D-14. FINDINGS RECORDED BY SESSIONS COURT:

7. The learned Sessions Judge, after evaluating the evidence, has convicted the accused on the basis of circumstantial evidence. In order to arrive at the conclusion that accused Nos.1 to 5 have committed the murder of deceased, learned Sessions Judge has relied upon the call details of accused Nos. 1 to 5 and the deceased. It is also held that marriage between accused Nos.1 and 5 had been arranged and due to love affair between the deceased and accused No.5 they thought deceased would be a stumbling block and as such, there was a strong motive to eliminate the deceased was 12 probabalised. The recovery of alleged incriminating evidence namely, mobile phones of accused Nos.1 to 5-

M.Os.9 to 14, smashed mobile phone of deceased - M.O.15, car jack - M.O.16 as well as the spectacle of the deceased - M.O.17 had been proved by the prosecution, on the basis of voluntary statement of accused Nos.1 to

5. The learned Sessions Judge, therefore concluded that Section 27 of the Evidence Act, 1872, pressed into service is a strong circumstance to prove the prosecution case, which evidence is admissible and presumption under Section 114 of the Evidence Act can be drawn in favour of the prosecution. It is further held that there was no dispute to the fact that accused Nos.2 to 4 are friends of accused Nos.1 and 5 and therefore their role in extending help to accused Nos.1 and 5 for commission of the offence cannot be ruled out. It is further held that in the statement given under Section 313 Cr.P.C. none of the accused have given any explanation to any of the incriminating materials found in the evidence of the prosecution witnesses. Hence, it held that an adverse 13 inference has to be drawn against accused persons. It is in this background, the finding recorded by the learned Sessions Judge which is assailed in these appeals will have to be examined.

8. We have heard the arguments of Sri Ravi B. Naik, Sri Hasmath Pasha, learned Senior Advocates, Sri Shankarappa and Sri R.S.Jeethu, learned Advocate appearing for accused Nos.1, 3 & 4, 2 and 5 respectively and Sri Vinayaka V.S., learned HCGP appearing for respondent-State.

ARGUMENTS OF LEARNED ADVOCATES:

APPEARING FOR APPELLANTS

9. It is the contention of Sri Ravi B Naik, learned senior counsel appearing for appellant-accused No.1 that complainant states that she resides in Chickmagalur, whereas in evidence, she states that she is residing in Rajanashirur, only with intention to demonstrate that deceased was having love affair with accused No.5. He would also contend that photographs Ex.P-3 to P-20 produced are not accompanied by the certificate as per 14 the mandate of section 65-B of the Evidence Act and he draws the attention of the court that said photographs were marked subject to objections of the defence counsel and as such, it was incumbent upon the trial court to delve upon as to how it was acceptable piece of evidence. He would contend that postmortem of the dead body was conducted between 3.52 to 5.55 p.m. on 14.02.2013 and death is said to have occurred 24 to 30 hours before the postmortem. If this theory of the prosecution is accepted, then, the claim put forth by the prosecution that incident had occurred between 6.00 p.m. of 13.02.2013 and 8.00 a.m. of 14.02.2013 cannot be accepted. He would also contend the presence of the police at the place where the articles were found is spoken to by P.W.2 who is a witness to the inquest panchanama - Ex.P-21 and even before the accused making voluntary statement and producing the material object. Hence, there is no recovery or discovery as provided under Section 27 of the Evidence Act. 15

9.1) He would also contend that P.W.3 is a panch witness to Ex.P-27 where the motorbike - M.O.1 was found and he is from the same village as that of P.W.1 and though he admits that he was at the Jodi setuve from 9.00 a.m. i.e., earlier to the arrival of the police, he does not speak about the presence of towels near the place where the body of the deceased was found. He would submit that when this witness was confronted with the pictures shot during drawing up of panchanama, the witness was not in a position to state the location where these photos were shot. Though the prosecution has contended the said photographs are at the location where the body of the deceased was found, he has not identified the location.

9.2) He would also contend P.W.4 a close relative of the deceased and was expected to be at the funeral which took place on 12.03.2013 at around 6.30 p.m. and as such, his statement that he was present at the police station at 6.30 p.m. cannot be believed. 16

9.3) He would contend that P.W.7 who is a panch witness to the mahazar of the scorpio car - M.O.20 has admitted that no material having been seized from the scorpio car and does not remember any person to have been present in the station on the date of mahazar. He would also contend by drawing attention of the court to the evidence of Dr.Nagendra - P.W.8 that according to the said witness, post mortem was conducted on 13.02.2013 between 3.50 p.m. to 5.50 p.m. and has opined death was due to shock and hemorrhage. He has deposed that jack - M.O.16 was actually given to him on 13.02.2013 for opinion by the I.O.- P.W.16 by letter dated 13.02.2013, which would clearly establish that the said M.O.16 was not seized on the basis of the statement made by accused No.1 on 19.02.2013, which is the theory put forth by the prosecution.

9.4) He would also draw the attention of the court to the admission of P.W.8 - Doctor about there being superficial burn injuries at three places on the body of the deceased. He would contend that P.W.9 who was the 17 owner of the scorpio vehicle - M.O.20 has admitted that the vehicle was clean from outside and he saw the inside portion only on the day when the vehicle was taken away. The vehicle was taken by the police on 18.02.2013 but the mahazar was conducted on 23.02.2013 in the police station and the police who seized the scorpio car have not been examined nor their statements recorded. This witness also admits that he came to the police station on the day after the seizure i.e. 19.02.2013 and thus, it is clear that there was no visible blood stains in the vehicle as contended by the prosecution. He would also submit that seizure of the vehicle is earlier to arrest of accused Nos.2 and 5 and recording of the voluntary statements of accused Nos.1 to 5.

9.5) He would submit that insofar as P.W.10 is concerned, he is a jail bird facing 9 criminal cases and discredited witness. He would submit that P.W.11 who is said to have made entries in the Station House Diary on receiving the information about the dead body lying at Jodi setuve, has admitted in his cross examination that 18 Investigating Officer gave him instructions to apprehend accused No.1 on 17.02.2013 and when he went to Rajanashiriyur at 7.30 p.m., he admits to have seen accused No.1. He also admits to have apprehended accused No.1 on 18.02.2013 at Maruthi Nagar at Bengaluru. This contradiction is writ large.

9.6) He would also submit that P.W.13 - Scientific Officer has deposed that articles were not kept in proper preservation and alcohol was found in blood and not in stomach. He would further contend that P.W.14 has admitted about arrest of accused No.5 on 20.05.2013 at Ashraya hospital.

9.7) Insofar as evidence of P.W.15 is concerned, he draws the attention of the court to the C.D - Ex.P-44 relating to the movement of vehicles at Toll Plaza to contend that mandatory certificate under Section 65-B of the Indian Evidence Act is not produced and mere print out is inadmissible in evidence.

9.8) He would also contend that evidence of P.W.16 would indicate that the jack - M.O.16 was not 19 sent to serological testing nor the alleged blood stains found in the car. He would also submit the said witness did not initiate action to recover the clothes worn by accused Nos.1 to 4 on 13/14.02.2013 for being sent to FSL to match with the blood group of the deceased. He would also submit that P.W.16 has admitted that mobile location of all the accused persons and the deceased was never found at the same location and as such, presence of accused Nos.1 to 4 within the location of the deceased had not been proved or in other words, accused Nos.1 to 4 assaulting the deceased on 13.02.2013 is not established.

9.9) He would submit that call which was received, was from Mr.Mohammed Shafi and the sim card found in M.O.14 was used by the said Mr.Mohammed Shafi and the prosecution having failed to establish that the call was in fact made from the phone of accused No.5 by using IMEI No. from the seized mobile phone and confirmed through examination was not undertaken. Thus, the prosecution having failed to 20 establish the same, it is clear that accused persons have been falsely implicated. Hence, he prays for the appeal filed by accused No.1 being allowed and he be set at liberty forthwith.

10. Sri Shankarappa, learned counsel appearing for accused No.2 would contend when accused No.5 and deceased were in love with each other and complainant having expressed that her son's death was unnatural death, question of accused No.2 committing the said offence does not arise. He would submit that there is no direct evidence about involvement of accused No.2. It is further stated that there are no allegations either in the complaint or in the FIR about any independent overt act by accused No.2. He would submit that there was no benefit for the appellant at the outcome of the alleged committing the murder of Sri Dilip Kumar. He would also submit the prosecution has failed to prove the motive for committing the offence of murder. The contradictions, omissions and improvements in the statement and evidence of the prosecution witnesses 21 have been completely ignored by the learned trial Judge and as such, he prays for allowing the appeal filed by accused No.2.

11. Sri Hasmath Pasha, learned senior counsel appearing for accused Nos.3 and 4 would submit that prosecution has failed to establish any circumstances against accused Nos.3 and 4 and they are totally unconnected and strangers to the relationship of accused Nos.1 and 5. He would submit there was no motive to cause death of deceased and prosecution has failed to establish that they had been engaged by accused Nos.1 and 5 to eliminate the deceased. He would submit that P.W.10 did not identify any of the accused nor identified the scorpio vehicle or the motorbike of the deceased. He would submit that even according to the prosecution, accused No.1 was arrested on 17.02.2013 and his voluntary statement was recorded as per Ex.P-51, whereas, accused Nos.3 and 4 were arrested on 18.03.2013 on the basis of voluntary statement of accused No.1 and even according to the 22 prosecution, voluntary statement of accused No.1 as per Ex.P-51, the entire information as to the commission of offence was revealed by him and as such, nothing more was to be discovered at the instance of accused Nos.3 and 4. He would submit that mere marking of voluntary statement does not amount to proof. He would submit that in the statement of accused No.1 - Ex.P-51, the details about the dead body of the deceased and motor cycle has been revealed according to the prosecution and as such, recovery at the instance of accused Nos.3 and 4 on the basis of voluntary statements - Ex.P-53 & 54 did not arise. He would submit that M.O.17 was not identified by anyone and mere recovery has no significance. He would submit that mobile phone which is alleged to have been seized from accused No.4 and the call list pertaining to the same as per Ex.P-58, prosecution has failed to prove the movement of accused from Bangaluru to Halebidu and the call list as per Ex.P- 58 pertains to mobile No.8147885694 and the sim card was standing in the name of Mr.Raghu and admittedly, 23 he has not been examined and Ex.P-58 would also show the movement of accused No.4 in and around Bangalore and as such, theory of he having gone to Halebidu does not arise.

11.1) He would further contend that Exs.P-57 & 58 has not been proved since no evidence is led as required under Section 65B(2) of the Evidence Act. He would submit that evidence of P.W.9 would not assist the prosecution in any manner and it had failed to establish that the scorpio vehicle owned by P.W.9 was used for the commission of offence and at that time, accused No.3 was the driver of the said vehicle. Hence, he has prayed for the appeals filed by accused Nos.3 and 4 be allowed.

12. Sri Jeetu, learned counsel appearing for accused No.5 contends that presence of accused No.5 in the alleged conspiracy was not forthcoming from the evidence of the witnesses - P.W.1 to P.W.16 . He would also submit that P.W.10 had not identified the accused before the trial Judge. He would also submit that sim card alleged to have been used by accused No.5 at the 24 time of commission of offence was in the name of Sri Mohammed Sayeed. The Nodal officer who would have been the competent witness to depose the contents of Exs.P-59, P-60 and P-61 had not been examined. He would also contend the mother of deceased examined as P.W.1 had not deposed the phone number of the deceased and as such, no link was established by the prosecution about any call having gone to the phone of the deceased from accused No.5. He would also submit that learned trial Judge erred in not noticing that the chain of circumstances was not complete and as such, appellant - accused No.5 would not have been convicted.

Referring to the deposition of witnesses, he has prayed for allowing the appeal by setting aside the judgment of conviction and order of sentence.

13. In support of their submissions, they have relied upon the following authorities:

(i) AIR 1947 PC 67: PULUKURI KOTAYYA AND OTHERS vs. KING EMPEROR

(ii) CRIMINAL APPEAL No.57/2013: SONU @ SUNIL vs. STATE OF MADHYA PRADESH 25

(iii) ILR 1994 KAR 491: VIJAYKUMAR v.

STATE

(iv) ILR 1996 KAR 2: NAGARAJ v. STATE OF KARNATAKA

(v) (1976) 1 SCC 542: MAHMOOD v. STATE OF U.P.

(vi) (2003) 2 SCC 202: STATE OF U.P. v. ARUN KUMAR GUPTA

(vii) (2005) 11 SCC 133: MURLIDHAR AND OTHERS v. STATE OF RAJASTHAN

(viii) AIR 1965 SC 942: S. VARADARAJAN v. STATE OF MADRAS

(ix) AIR 1953 SC 364: DALIP SINGH AND OTHERS v. THE STATE OF PUNJAB

(x) 2007 CRI.L.J. 2736: MANO v. STATE OF TAMIL NADU

(xi) (1991) 3 SCC 627: KHUJJI @ SURENDRA TIWARI v. STATE OF MADHYA PRADESH

(xii) (2014) 3 SCC 401: GULAM SARBAR v.

STATE OF BIHAR (NOW JHARKHAND)

(xiii) (2011) 5 SCC 258: KULVINDER SINGH AND ANOTHER v. STATE OF HARYANA

(xiv) AIR 1953 SC 364: DALIP SINGH AND OTHERS v. THE STATE OF PUNJAB

(xv) (1997) 6 SCC 171: VIJENDER v. STATE OF DELHI (xvi) (1994) 5 SCC 152: SUKHVINDER SINGH AND OTHERS v. STATE OF PUNJAB 26 (xvii) (2014) 10 SCC 473: ANVAR P.V. v. P.K. BASHEER AND OTHERS (xviii) (2015) 7 SCC 178: TOMASO BRUNO AND ANOTHER v. STATE OF UTTAR PRADESH (xix) 1977 (9) UJ 226 SC: NARSINBHAI HARIBHAI PRAJAPATI v. CHHATRASINH AND OTHERS (xx) (1977) 2 SCC 99: HUKAM SINGH v. STATE OF RAJASTHAN (xxi) (2017) 1 SCC 734: HARPAL SINGH ALIAS CHHOTA v. STATE OF PUNJAB (xxii) (2009) 9 SCC 221: MALAY KUMAR GANGULY v. DR. SUKUMAR MUKHERJEE AND OTHERS (xxiii) (2003) 11 SCC 261: STATE OF HARYANA v. JAGBHIR SINGH AND ANOTHER (xxiv) 2012 CRI.L.J. 3491: C. PERUMAL v.

    RAJASEKARAN AND OTHERS

    (xxv) 2018  CRI.L.J.       2329:    UJERAM
    KHULURAM RATHIYA v.         STATE       OF
    CHATTISGARH

    (xxvi) CRIMINAL APPEAL     No.993/2012:
    MADEVA v. THE STATE OF KARNATAKA

(xxvii) CRIMINAL APPEAL NO.205/2016:

SRI.K.KUMAR v. THE STATE BY RURAL POLICE APPEARING FOR RESPONDENT

14. Sri Vinayaka V.S. learned HCGP appearing for respondent has supported the judgment of the 27 Sessions court by contending that the learned Sessions Judge by over all consideration of the evidence has arrived at a conclusion that all the circumstances placed by the prosecution had proved the guilt of the accused and none else. Hence, he contends the conviction based on circumstantial evidence is to be sustained.

15. He would also contend that minor inconsistencies or contradictions are to be overruled and the very fact that the call details of the mobile phones belonging to accused persons disclosing they had visited the place of crime and were available at the relevant point of time at the said scene of offence was sufficient enough to arrive at a conclusion that accused Nos.1 and 5 had conspired with accused Nos.2 to 4 to take away the life of deceased who was in love with accused No.5 and as the family members of both had not agreed for the same and the marriage of accused No.5 having been arranged with accused No.1, they thought fit that deceased would become a stumbling block in their marital life and as such, they had hatched a conspiracy 28 and after murdering the deceased namely, son of P.W.1, had attempted to destroy the evidence by depicting the death as though it was a road traffic accident and had failed in their attempt. He would pray for the appeals being dismissed.

16. Having heard the learned Advocates appearing for parties and on perusal of the entire records secured from the Sessions court and after bestowing our careful and anxious consideration to the rival contentions raised at the Bar and on perusal of the case laws relied upon by the learned Advocates, we are of the considered view that following points would arise for our consideration:

            (1)    Whether        the     judgment        of
            conviction and        order   of    sentence
            passed     by   the    Principal    Sessions
            Judge,           Chikkamagalur             dated
            30.06.2014        in        S.C.No.62/2013,

convicting the appellants-accused for the offences punishable under Sections 302 and 201 read with 29 Sections 120B and 34 of IPC is to be affirmed or set aside?

(2) Whether the learned Sessions Judge while convicting the appellants

- accused for the offences punishable under Sections 302 and 201 read with Sections 120B and 34 of IPC has appreciated the evidence in proper perspective or the material contradictions if any, has been overlooked or ignored?

(3) What order?

DISCUSSION, FINDINGS AND CONCLUSION:

17. The gist of the prosecution case as noticed herein above is that accused No.5 and deceased Mr.Dilip Kumar were in love with each other and they intended to marry which did not materialise on account of their horoscopes not matching and as such, the marriage of accused No.5 had been arranged with accused No.1. It was the further case of the prosecution that accused Nos.1 and 5 had an apprehension that the deceased would become a stumbling block in their marital life and 30 as such, they hatched a conspiracy with accused Nos.2 to 4 and in furtherance of it, accused No.5 had called the deceased Mr.Dilip Kumar from her mobile phone on 14.02.2013 and invited him for celebrating valentine's day and as such, he came on his motorcycle - M.O.1 on the said date and was waiting on Belur- Halebeedu road near Basaveshwara temple, at which point of time, accused Nos.1 to 4 came in the Scorpio vehicle - M.O.20 and assaulted Mr.Dilip Kumar with a car jack - M.O.16 on his head, as a result of which, he sustained grievous injuries and later on, succumbed to it. It was also alleged by the prosecution that they brought the dead body near Jodi setuve of Kalasapura, threw the dead body on the road, ran over the front tyre of the scorpio vehicle on the head of Mr.Dilip Kumar and pushed his motorcycle into the nearby ditch to make it appear that it was an accidental death and thereby destroyed the evidence of crime.

18. At the cost of repetition, it requires to be noticed that learned Sessions Judge having noticed that 31 there were no eye witnesses to the incident, relied upon the circumstantial evidence namely, the circumstances like motive, recovery of incriminating articles, conduct of the accused and last seen theory to convict the accused. Hence, in this background, the evidence tendered by the prosecution both oral and documentary are evaluated by us to ascertain as to whether there is either erroneous appreciation of evidence or material contradictions if any, having been overlooked by the learned Sessions Judge. Hence, adjudication of point Nos.(1) and (2) formulated above is taken together. as discussion on either of the points is likely to overlap. RE: POINT Nos.(1) and (2):

19. Even according to the prosecution, the conviction of the appellants is based on circumstantial evidence. It is trite law that prosecution has to prove each of the circumstances leading to the guilt of the accused beyond shadow of doubt. Necessarily each of those proved circumstances must point out towards one tendency namely, guilt of the accused. In fact, those 32 proved circumstances must form a complete link in the chain of circumstances and they must be consistent with the innocence of the accused.

20. The Hon'ble Apex Court in the case of HUKUM SINGH vs STATE OF RAJASTHAN reported in (1977) 2 SCC 99 has held, if the circumstances proved in a particular case, are not inconsistent with the innocence of the accused and if they are susceptible of any rational explanation, no conviction can lie. It has been further held:

"7. It is now settled law that in case of circumstantial evidence, all the incriminating facts and circumstances should be fully established by cogent and reliable evidence and the facts so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and one conclusion only that the accused person and none other perpetrated the alleged crime. If the circumstances with the innocence of the accused and if they are susceptible of any rational explanation, no conviction can lie. Judged from this stand point, it is not possible to affirm the conviction of the appellant for the 33 offence of murder of any one or more of Bhanwar Singh, Roop Singh, Lad Kanwar and Inder Kanwar. The three circumstances relied upon by the prosecution are not incompatible with the innocence of the appellant insofar as the murders of these four persons are concerned. They are capable of being explained away on a hypotheses other than that of guilt of the appellant. We may point out that in any event the view taken by the Sessions Court that the circumstances were not sufficient to found the conviction of the appellant was a reasonable view and the High Court was not justified in reversing it."

21. It has been held by the Hon'ble Apex Court in PADALA VEERAREDDY vs STATE OF ANDHRA PRADESH reported in 1989 SUPP.(2) SCC 706 that in case of prosecution resting its case upon circumstantial evidence, then it must satisfy the following tests:

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that 34 there is no escape from the conclusion that within all human probability, crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of any explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

22. Hon'ble Apex Court in the case of STATE OF HARYANA vs JASBIR SINGH & ANOTHER reported in (2003) 11 SCC 261 has held conviction based on circumstantial evidence can be justified only when all incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. It has been further held:

"8. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence 35 of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan [(1977) 2 SCC 99 : 1977 SCC (Cri) 250 : AIR 1977 SC 1063] , Eradu v.

State of Hyderabad [AIR 1956 SC 316 :

1956 Cri LJ 559] , Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447 : AIR 1983 SC 446] , State of U.P. v. Sukhbasi [1985 Supp SCC 79 : 1985 SCC (Cri) 387 : AIR 1985 SC 1224] , Balwinder Singh v. State of Punjab [(1987) 1 SCC 1 :

1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Kumar Chatterjee v. State of M.P. [1989 Supp (1) SCC 560 : 1989 SCC (Cri) 566 : AIR 1989 SC 1890] ) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab [AIR 1954 SC 621 : 1954 Cri LJ 1645] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."

23. In the instant case, learned trial Judge has held the chain of events commencing from accused No.5 calling the deceased on 13.02.2013 over mobile phone and asking him to come near Basaveshwara Temple, Belur-Halebeedu Road, to celebrate valentines day; he having arrived at the place or scene of crime and at that 36 point of time accused Nos.1 to 4, having arrived in a Scorpio vehicle and waiting for the deceased, had assaulted the deceased by use of a car-Jack; and, thereafter accused Nos.1 to 4 in furtherance of their conspiracy with accused Nos.1 and 5 to cause disappearance of evidence of crime had carried the dead body of deceased Dileep Kumar to Kalasapura Bridge and thereafter rode the Scorpio vehicle over the head of deceased Dileep Kumar, including pushing of the motorcycle of the deceased under the bridge so as to create evidence of accidental death had been proved. Hence, judgment of Sessions court is examined by us on re-appreciation of entire evidence available on record as to find out whether circumstantial evidence available on record, would firmly establish the guilt of accused or they point only towards accused and it is not inconsistent with the innocence of accused.

24. In the background of prosecution theory, we have evaluated the evidence available on record and have noticed that complaint came to be lodged by 37 Smt.Yashoda - P.W.1 - mother of deceased as per Ex.P-1 on 14.02.2013, which ignited the jurisdictional police to investigate the cause of death of Sri Dileep Kumar, whom the complainant alleged had been murdered by some unknown persons for unknown reasons. Ex.P-1 - complaint is typed on a computer and print out of the same was lodged before the Rural Police Station, Chikmagalur. A perusal of the same would disclose that complainant has alleged that she is a resident of 3rd Cross, Kalyananagar, Chikmagalur and her deceased son had completed his Engineering course in AIT College, Chikmagalur one year prior to his death. She has also alleged that on account of her father who is a resident of Kabbigere was not keeping well and she had been to her parental home along with her husband and on 14.02.2013 and her brother Sri Chandrashekar received a telephone call from an unknown person informing that his motorcycle was found in a ditch (Halla) near Kalasapura bridge and a dead body was lying over the bridge. Hence, she is said to have 38 proceeded to the said bridge along with her husband and brother and found that dead person was her son Dileep Kumar and she found he had sustained grievous injuries over his head and his face was crushed. She has also alleged that someone with ill motive had murdered her son elsewhere and had thrown his dead body over the bridge. She further alleged that when she left her house to her parental home along with her husband, her son Dileep kumar and sons of her husband's brother namely, Sri Praveen (C.W.7) and Sri Manu were at the house. However, neither C.W.7 was examined by the prosecution nor statement of Manu came to be recorded by the Investigating Officer. In fact, the husband of the complainant i.e., father of the deceased as well as C.W.8

- Chandrashekar - brother of complainant, were also not examined by the prosecution. In fact, complainant has not named anyone in her complaint - Ex.P-1.

25. Complainant who came to be examined as P.W.1 has deposed she was seeing accused No.5 everyday who was staying in front of her house at 39 Rajanasiriyuru till the incident took place. She has also deposed that her son was in love with accused No.5 since 4 to 5 years. In order to establish the closeness of deceased and accused No.5, she has produced the photographs - Ex.P-3 to P-20, which discloses deceased and accused No.5 being in close contact. She further admits that Exs.P-3 to P-5, P-9 to P-15 and P-19 and P- 20 are taken in their house. The evidentiary value of these photographs would be discussed by us at a little later. When admittedly, accused No.5 is a resident of Rajanasiriyuru village and complainant being a permanent resident of Chikmagalur, her statement on oath that she was seeing accused No.5 everyday in front of her house raises a serious doubt. This contradiction has not been explained to by the prosecution. It is not the case of prosecution that matrimonial home of P.W.1 was in Rajanasiriyuru and as such she was staying there. It is also not the case of the prosecution that P.W.1 was residing with her husband at Rajanasiriyuru. On the other hand, P.W.1 herself has clearly admitted in 40 her examination-in-chief that she is a permanent resident of Chikmagalur. This inconsistency in the evidence of P.W.1 has remained a mystery.

P.W.1 has also deposed that she was at the scene of crime where dead body of her son was lying up to 2.30 p.m. or 3.00 p.m. on 14.02.2013. As per Post Mortem report - Ex.P-36, same was conducted on 14.02.2013 between 3.50 p.m. to 5.50 p.m. by Dr. Nagendra -P.W.8 and he has deposed that death might have taken place between 24 to 30 hours prior to the post mortem, which means on 13.02.2013 between 3.00 p.m. to 5.00 p.m. Whereas, it is the specific case of the prosecution that deceased came near Basaveshwara Temple on 13.02.2013 at 7.00 p.m. at the instance of accused No.5 and he was murdered around 7.00 p.m. Thus, theory putforth by the prosecution that murder of Sri Dileep Kumar had occurred on 13.02.2013 at 7.00 p.m. raises a serious doubt. In other words, the incident could not have occurred between 6.00 p.m. to 8.00 a.m. 41 of 13.02.2013 - 14.02.2013 as claimed by the prosecution.

26. P.W.1 is also witness to the spot-cum-seizure mahazar - Ex.P-2 under which, the motor bike - M.O.1, two towels marked as M.Os.2 and 3, Titan Watch - M.O.4, clothes of the deceased identified by her as M.O.5 and M.O.6 namely, T-shirt and Jeans Pant came to be seized. As already noticed herein above, motorbike - M.O.1 is stated to be registered in the name of her brother - Sri Chandrashekhara - C.W.8 namely, Registration Certificate holder of the vehicle and he has not been examined by the prosecution.

27. The other circumstances like motive, recovery of incriminating articles, last scene theory and conduct of the accused persons, came to be relied upon by the prosecution to prove the guilt of the accused persons. To prove that accused No.5 was in love with the deceased, Photographs - Exs.P-3 to P-20 came to be produced and marking of these photographs through P.W.1 was 42 objected to by the defence and subject to objections, they came to be marked as Exs.P-3 to P-20 on 10.09.2013. The prosecution has made an attempt to rely upon this evidence to contend that deceased was in love with accused No.5 and marriage of accused No.5 had been arranged with accused No.1 and deceased would have become a stumbling block in their marriage and as such, accused Nos.1 and 5 had motive to take away the life of deceased. P.W.1 has deposed that her husband's brother's son had found these photographs from the laptop of the deceased and he had got printed said photographs. However, said person has not been examined by the prosecution. In fact, the laptop in which photographs are said to have been found, was not produced and the owner of the laptop was also not examined. P.W.1 has not deposed as to whom the laptop belonged to. These photographs partake the character of electronic evidence as defined under Section 65-B of the Evidence Act. Hence, the evidentiary value of these photographs will have to be examined, by keeping in 43 mind the provision of Evidence Act. The expression "evidence" has been defined under Section 3 of Evidence Act and it reads:

"3. Interpretation clause.-In this Act xxx context:

        "Evidence".-"Evidence"            means       and
        includes-

        (1)        all statements     which the Court
                   permits or requires to be made

before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence."

28. The Indian Evidence Act, 1872 came to be amended by Act 21 of 2000 and corresponding amendments also came to be introduced in the Indian Penal Code and the Bankers Books Evidence Act, 1881. Section 22-A of the Evidence Act which was inserted by Amendment Act, 21 of 2000 reads:

"22A. When oral admissions as to contents of electronic records are 44 relevant. - Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question."

Subsequently, Section 45-A of The Indian Evidence Act was inserted by Act 10 of 2009 which came into force with effect from 27.10.2009 reads:

"45A. Opinion of Examiner of Electronic Evidence.-- When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.

Section 59 under Part-II of The Indian Evidence Act dealing with proof, reads as follows:

"59. Proof of facts by oral evidence. - All facts, except the contents of documents or electronic records, may be proved by oral evidence."

Sections 65-A and 65-B of The Indian Evidence Act which was inserted by Act 21 of 2000 reads:

"65A. Special provisions as to evidence relating to electronic record.

- The contents of electronic records may 45 be proved in accordance with the provisions of section 65B."

"65B. Admissibility of electronic records. - (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would admissible."

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during the part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-

section (2) was regularly performed by computers, whether--

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(d) in any other manner involving he successive operation over the period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a compute shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--

(a) identifying, the electronic record containing the statement and describing the manner in which it was produced.

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer,

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person station it.

(5) For the purposes of this section,--

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment."

29. We are of the considered view the above provisions of the Evidence Act has relevancy to the issue, falling for our discussion. Any documentary evidence by way of an electronic record under the Evidence Act can be proved only in accordance with the procedure prescribed under Section 65-B in the teeth of Section 59 and 65-A. A plain reading of Section 59 of Evidence Act would indicate all facts, except the contents of documents or electronic records can be proved by oral evidence. Section 65-B deals with the admissibility of electronic record. Under Section 3 of the Evidence Act, 49 the expression 'evidence' has been defined under sub- clause (1) and (2) and it includes electronic records produced for the inspection of the Court and they are called as documentary evidence. The expression 'electronic record' will have the same meaning assigned to it under the Information and Technology Act, 2000 (Act 21 of 2000). An "electronic record" is defined under the Information and Technology Act, 2000 as under:

"2(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;"

30. The purport of the above provisions is to recognize the secondary evidence in electronic form generated by a computer. Section 65-B starts with a non-obstante clause and where any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer, would be deemed to be a document and admissible in any proceedings, subject to conditions specified under sub-section (2) are satisfied or 50 in other words, they would be admissible in any proceedings without further proof or production of the original as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. The admissibility of such a document i.e., electronic record, which is known as computer output to be admissible in evidence has to satisfy the four conditions prescribed in clauses (a) to (d) of sub-section (2) of Section 65-B of the Evidence Act. It is only the electronic record which is duly produced in terms of Section 65-B of the Evidence Act, then resort can be had to Section 45-A.

31. The Hon'ble Apex Court in the matter of ANVAR P.V. vs. P.K. BASHEER reported in (2014) 10 SCC 473 has held that Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with. It has been further held:

"16. It is further clarified that the person need only to state in the certificate 51 that the same is to the best of his knowledge and belief. Mot importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A - opinion of Examiner of Electronic Evidence.

18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.

22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the 52 admissibility of electronic record.

Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] , does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."

32. In the instant case, we have already noticed that laptop in which the photographs Exs.P-3 to P-30 were found, was not produced. There is no compliance of Section 65-B of the Evidence Act and the person who is said to have downloaded the photographs from the laptop and had taken the print outs of said photographs has not been examined. As such said photographs loses its significance and it does not have any evidentiary 53 value as four (4) conditions prescribed under clauses (a) to (d) of sub-section (2) Section 65-B are not satisfied. Even otherwise, the photographs Exs.P-3 to P-20 would not come to the rescue of the prosecution to point out that deceased had any motive to spoil the matrimonial life of accused No.5 and accused No.1. Even if these photographs are taken on its face value, we notice on closer look at these photographs that accused No.5 and deceased were close to each other and they were intimate with each other. Hence, in normal circumstances, it cannot be believed that accused No.5 would have gone to the extent of eliminating a person whom she was in deep love. The chances of accused No.5 having any motive is too remote to be accepted.

Prosecution has also relied upon evidence of P.W.5 (friend of deceased) to allege motive against accused Nos.1 and 5, which has been surprisingly accepted by the learned Sessions Judge on the ground it probabalises the prosecution theory. When, undisputedly, deceased and accused No.5 were in love 54 with each other and this fact having been spoken to by P.W.1 and P.W.5 and nothing have been stated by these two witnesses about accused No.1 having any knowledge of the love affair or accused No.5 having informed accused No.1 about deceased threatening her to get married to him, no motive can be attributed to accused No.1 to eliminate Sri Dileep Kumar and it is highly improbable for a person like accused No.5 who was in love with the deceased could have hatched a plan or conspired with accused No.1 to eliminate a person whom she was in love and she wanted to elope. P.W.1 or P.W.5 have not deposed that accused No.5 was not inclined to marry deceased on account of her marriage having been fixed with accused No.1. Hence, theory of motive attributed to accused Nos.1 and 5 does not sync with the facts and evidence obtained on hand and it is highly improbable.

33. The incriminating material which the prosecution has sought to rely upon to drive home the guilt of the accused is, the mobile phones belonging to 55 accused Nos.1 to 5 which came to be seized - M.Os.9 to M.O.14, M.O.15 and call detail records (CDR) - Exs.P-55 to P-60 including the alleged applications submitted by the Investigating officer to the service provider. It is the case of the prosecution that mobile phones of accused Nos.1 to 5 as well as that of the deceased were seized under MO-9 to MO-15 under the seizure panchanamas- Exs.P-22 to P-26 and P-28 and the call details of said mobile phones as per Exs.P-55 to P-60 had disclosed the calls that had generated interse between these persons at the relevant point of time i.e., 12.02.2013 to 13.02.2013 and as such it would establish the complicity of the accused persons in hatching conspiracy to murder Sri Dileep Kumar and execution of said conspiracy. Thus, seizure panchanamas of mobile phones, the call details emerging from the said mobile phones which was relied upon by the prosecution and which came to be accepted by the learned Sessions Judge, requires to be examined in the background of contentions raised by the learned Advocates appearing for the parties. For the 56 purposes of convenience, the details of mobile phones which is alleged to have belonged to accused Nos.1 to 5, which came to be marked as M.Os.9 to M.O.15, respective seizure panchanamas - Exs.P-22 to P-26 and P-28, call details records of these phone numbers, which came to be marked as Exs.P-55 to P-61, are tabulated herein below:

Mobile No. Marked Alleged to Seizure CDR as be Panchanama details Belonging to 7829747669 M.O.9 Accused Ex.P.22 Ex.P-55 No.1 9845262508 NIL Accused NIL NIL No.1 9060826565 M.O.10 Accused Ex.P.23 Ex.P.56 No.2 9739071939 M.O.12 Accused Ex.P.25 Ex.P.57 No.3 8147885694 M.O.11 Accused Ex.P.24 Ex.P.58 No.4 9980460744 NIL Accused NIL NIL No.4 8722501872 M.O.13 Accused Ex.P.26 Ex.P.59 No.5 9740065043 M.O.14 Accused Ex.P.26 Ex.P.60 No.5 8150810405 NIL Accused NIL NIL No.5 7353501104 M.O.15 Deceased Ex.P-28 NIL Dileep 8904018313 M.O.15 Deceased NIL Ex.P-61 (Smashed Dileep Micromax Mobile) 57

34. As noticed hereinabove, the mobile phones M.O.9 to M.O.15 came to be seized under panchanamas Exs.P-22 to P-26 and P-28. P.W.2 is a witness to Ex.P-

22 to P-26. P.W.3 is a witness to Ex.P-26 and P-28. Yet another witness to seizure panchanamas namely, Sri.K.N.Ramaiah, who has affixed his signature to Exs.P-

22 to P-25, has not been examined by the prosecution.

Under these seizure panchanamas, the incriminating - mobile phones alleged to be belonging to accused Nos.1 to 5 came to be seized. Accused No.1 was arrested on 18.02.2013 at 6.00 p.m. and his voluntary statement came to be recorded as per Ex.P-51 and seizure of M.O.9 under Ex.P-55 came to be made on the basis of said statement. Whereas, accused Nos.2 to 4 were arrested on 19.02.2013 and their voluntary statements-Exs.P-52 to P-54 came to be recorded on said date and based on said statements, M.Os.10 to12 came to be seized. Pre- arrest, no evidence or needle of suspicion pointed towards accused Nos.1 to 4. All the recoveries are 58 purported to be on the basis of voluntary statements of accused Nos.1 to 4 as per Exs.P-51 to P-54.

35. Section 27 of the Evidence Act permits derivative use of custodial statements in the ordinary course of events. A fact discovered is an information supplied by the accused in his voluntary statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused. Statement distinctly leading to discovery of a fact would be admissible in evidence. The Hon'ble Apex Court of SUKHVINDER SINGH vs. STATE OF PUNJAB reported in (1994) 5 SCC 152 has held that re-discovery of a fact already disclosed and capable of discovery, is not contemplated. It has been held that Section 27 of the Evidence Act is an exception to the general rule that a statement made before the police is not admissible in evidence, is not in doubt. However, under Section 27 only so much of the statement of an accused is 59 admissible in evidence as distinctly leading to discovery of a fact. It has been further held:

"16. The first piece of circumstantial evidence relied upon against them revolves around the recovery of the dead body of Varun Kumar from the house of Sukhvinder Singh and his parents on the disclosure statements made by Sukhvinder Singh, Sukhdev Paul and Puran Chand Ex. PW 10/B, Ex. PW 10/C and Ex. PW 10/D respectively. We are surprised at the manner in which the disclosure statements were recorded by the investigating agency and relied upon by the Designated Court. That Section 27 of the Evidence Act is an exception to the general rule that a statement made before the police is not admissible in evidence is not in doubt. However, vide Section 27 of the Evidence Act, only so much of the statement of an accused is admissible in evidence as distinctly leads to the discovery of a fact. Therefore, once the fact has been discovered, Section 27 of the Evidence Act cannot again be made use of to 'rediscover' the discovered fact. It would be a total misuse -- even abuse -- of the provisions of Section 27 of the Evidence Act. From the testimony of PW 14, SI Kashmir Singh it transpires that in the presence of PWs Hari Dutt and Jugal Kishore during the interrogation by SI Amar Singh, Sukhvinder Singh appellant made a disclosure statement to the effect that he along with others had concealed the dead body of Varun Kumar in the stack of hay in the room and that he could get the same 60 recovered. His disclosure statement Ex. PW 10/B was accordingly recorded which was signed by him and attested by the panch witnesses. Except for the discovery of the dead body of Varun Kumar on the basis of the disclosure statement of Sukhvinder Singh, Ex. PW 10/B, no other portion of the statement of Sukhvinder Singh implicating himself and others with the commission of the crime is admissible in evidence. After the disclosure statement was made by Sukhvinder Singh disclosing as to where the dead body of Varun had been concealed and from where it could be recovered, the recording of the disclosure statements of Sukhdev Paul and Puran Chand Ex. PW 10/C and Ex. 10/D was a wholly impermissible exercise and an obvious attempt to rope in Sukhdev Paul and Puran Chand with the aid of Section 27 of the Evidence Act. Since, the information had already been given by Sukhvinder Singh, appellant in his disclosure statement Ex. PW 10/B, the two subsequent statements Ex. PW 10/C and Ex. PW 10/D were not admissible in evidence because at the best they were leading to the "rediscovery of a fact already disclosed and capable of discovery". It has been admitted by PW 14 that the disclosure statement, Ex. PW 10/B, made by Sukhvinder Singh was the first in point of time and that he had disclosed where the dead body had been concealed and that he could point out the place and get it recovered. The investigating officer should have immediately acted upon the disclosure statement Ex. PW 10/B, rather than wait and record two more disclosure statements, as if the authenticity of recovery of dead body could be achieved 61 by the mere number of disclosure statements leading to the discovery of one and the same fact. In the face of the admission of PW 14 as noticed above, it is obvious that the so-called disclosure statements of Sukhdev Paul and Puran Chand Ex. PW 10/C and Ex. PW 10/D were not admissible in evidence and the Designated Court fell in error in relying upon the same. Admittedly, so far as Puran Chand is concerned, apart from the disclosure statement Ex. PW 10/D, there is no other piece of circumstantial evidence relied upon by the prosecution and once we rule out of consideration the disclosure statement allegedly made by Puran Chand Ex. PW 10/D, the conclusion is inescapable that the prosecution has not been able to establish the case against Puran Chand beyond reasonable doubt and there is no circumstance which can connect him with the alleged crime. The prosecution has led no evidence to show any connection inter se so far as the three appellants are concerned".

36. The interpretation of Section 27 came to be made by the Privy Council in the case of PULUKURI KOTAYYA AND OTHERS Vs. KING-EMPEROR reported in AIR 1947 Privy Council 67 and it came to be held:

"The second point involves a question of general importance as to the meaning and scope of s. 27 of the Evidence Act. One starts with the proposition of India law that under ss. 25 and 26 of the Evidence Act no confession made to a police officer can be given in 62 evidence. Then there is the provision in s. 27 of the Act that when a fact is discovered in consequence of information given by the accused one may give evidence of so much of the statement or confession as relates distinctly to the fact discovered, but no more."

Under Section 27 of the Evidence Act, only so much of the statement of accused is admissible in evidence as distinctly leading to discovery of the fact. In other words, when a fact has been discovered, consequent to information given by the accused, would be legal evidence and not the rest and it has to be excluded. Section 27 of the Act cannot be again made use of to "re- discover" the discovered fact.

37. In the instant case, accused No.1 came to be arrested on 18.02.2013 and his voluntary statement came to be recorded on said date whereunder he is said to have narrated the sequence of events about the use of vehicle, the manner in which the deceased was assaulted, use of mobile phones by the accused persons and the involvement of accused Nos.2 to 4, the place where mobile phones were thrown, etc.,. Therefore, 63 question of discovery of the place where mobile phones of accused Nos.3 and 4 had been thrown thereafter did not arise. Under Section 27 of the Evidence Act, if information given by the accused leads to the discovery of a fact which is the direct outcome of information so furnished, then only it could be evidence but when the fact has already been discovered as has been done in the instant case, evidence could not be led in respect thereof for subsequent recovery.

38. P.W.2, who is the witness to the seizure mahazars - Exs.P-22 to P-26 under which M.O.9 to M.O.15 came to be seized, has been cross-examined on 10.09.2013. He has deposed that he had been to the police station on 18.02.2013 and accused No.1 alone was present. He states that he went to the police station along with other witness Sri.K.N.Ramaiah -C.W.4. However, C.W.4 has not been examined. P.W.2 has admitted in his cross-examination that on 18.02.2013 police had asked him to come to the police station on 19.02.2013 at about 2.30 p.m. The seizure panchanama 64

- Exs.P-23, P-24 and P-25 has been drawn on 19.02.2013 between 1.00 p.m. to 2.00 p.m. He further admits that he is an old panchayat member and used to visit the police station, as and when some disputes were there. He further admits that he would affix his signature in the police station only in the event of persons are known to him. In the background of said admission, a serious doubt would arise with regard to seizure panchanamas - Exs.P-23 to P-25, inasmuch as, P.W.2 has visited the police station on 19.02.2013 at 2.30 p.m., whereas the panchanamas have been drawn between 1.00 p.m. to 2.00 p.m; he does not know accused Nos.2 to 4; he was a panchayat member and used to visit the police station, which discloses his closeness to the police. That apart, non examination of another witness who is a signatory to Exs.P-23 to P-25 i.e., Sri.K.N.Ramaiah-C.W.4 raises a serious doubt with regard to the seizure of mobile phones. Prosecution has relied upon Ex.P-58 alleged to be the call details of the phone belonging to accused No.4. However, the sim is 65 standing in the name of one Mr. Raghu, who has not been examined by the prosecution. In that view of the matter, the seizure of the mobile phones belonging to the accused Nos.1 to 4, cannot be accepted and the finding recorded by the trial Court is based on an erroneous appreciation of available evidence.

39. Insofar as, accused No.5 is concerned, she is said to have possessed three (3) mobile phone numbers bearing 8722501872, 9740065043 and 8150810405. One of the phone had dual sim. However, the call details of mobile number 8150810405 was not produced though in respect of other two phone numbers, call details were forthcoming as per Exs.P-59 and P-60 respectively. Insofar as Ex.P-60 is concerned, the call details ends on 13th February, 2013. According to the prosecution a call is said to have been made by the accused No.5 from mobile phone No.9740065043. The said phone even according to Investigation Officer - P.W.16 belonged to one Mr.Mohammad Shafi, who has not been examined. Further Ex.P.60 does not disclose 66 any telephone calls having gone from accused No.5 to the deceased. Investigating Officer - P.W.16 has deposed in his examination-in-chief dated 05.05.2014 that after seizure of the mobile phones, he had forwarded an e-mail to the office of Superintendent of Police by furnishing the details of mobile phone numbers of accused persons with a request to secure the call details of said mobile phone numbers. Undisputedly, the seizure of M.O.13 and M.O.14 under Ex.P-26 was on 20th February, 2013 between 2.30 p.m. to 3.00 p.m. The call details of the mobile number 9740065043 - Ex.P-60 have been obtained by P.W.16 on the strength of a requisition said to have been forwarded by him to the service provider on 14.03.2013. Whereas, the extract of call details - CDR - Ex.P-60 has been generated by the service provider on 14.02.2013. Accused No.5 was arrested on 20.02.2013. The needle of suspicion against accused No.5 was not pointing to her on 14.02.2013 since none of the accused had been arrested as on said date. Accused Nos.1 to 4 were arrested on 18.02.2013 and 19.02.2013. Their 67 voluntary statements came to be recorded on the same day they were arrested. As to how the call details of this phone number belonging to one Mr. Mohammad Shafi, purported to have been used by accused No.5, could have been obtained on 14.02.2013, raises a serious doubt with regard to seizure of the mobile phones, its possession thereof by accused No.5 and call having been made by her to the deceased. Further, a serious doubt would also arise as to how the Investigating Officer could have obtained the call details on 14.02.2013 itself that too, even before arrest of accused Nos.1 to 5 or their voluntary statements being recorded, based upon which seizure of mobile phones came to be made. There was no reason for Investigating Officer suspecting the involvement of accused No.5 on 14.02.2013, the day on which the complaint came to be lodged by P.W.1 as she has not disclosed the name of accused No.5 in her complaint - Ex.P-1.

40. Insofar as sim card No.8722501872-M.O.18, as already noticed herein above, belongs to one 68 Sri Mohammed Shafi and he has not been examined. This raises a serious doubt with regard to seizure of M.O.13. Learned Sessions Judge has relied upon call details - CDR - Exs.P-55 to P-61 to arrive at a conclusion that mobile phones of accused Nos.1 to 4 seized would indicate the places in which accused persons had roamed about during this period. Learned Sessions Judge has further held that there is no satisfactory explanation forthcoming from statements of the accused recorded under Section 313 Cr.P.C and as such, adverse inference has to be drawn against them. We are of the considered view that said reasoning is erroneous for reasons assigned herein below.

41. A conviction must rest on proof, so strong that Court must be convinced that what it concludes must necessarily has happened and is not reasonably explicable in any other way. When the prosecution has relied upon circumstantial evidence, it has to be proved as if there is no proof, than the offence having occurred other than the accused. Inference from the 69 circumstances must be cogent, must unerringly point to the guilt and incapable of any other explanation or any reasonable hypothesis. In the light of infirmities discussed herein above with regard to seizure of M.Os..9 to 11 and M.Os.13 to 15 under Exs.P-22 to P-26 and 28, there cannot be any presumption that accused persons have committed the crime. The very seizure of mobile phones itself is surrounded with suspicion and there is no cogent evidence available to arrive at a conclusion that seizure of incriminating material relied upon by the prosecution is proper. M.O.13, even according to the prosecution, belonged to one Sri Mohammed Shafi. Mobile phone seized under M.O.11 is standing in the name of one Sri.Raghu and both of them have not been examined. These loop holes in the investigation are writ large and they have remained unexplained by the prosecution.

42. Insofar as the third sim card no.8150810405 alleged to be belonging to accused No.5, no CDR details have been obtained by the Investigating Officer and this 70 fact is admitted by P.W.16 in his cross-examination dated 07.05.2014 vide paragraph 49 and it reads:

"ªÉÆ¨ÉÊ¯ï ¹ªÀiï ¸ÀASÉå 8150810405£ÉzÀgÀ ¸ÀA§AzsÀªÁV customer application «ªÀgÀUÀ¼À£ÀÄß PÉÃ½zÀÝgÀÆ PÀÆqÀ ¸À«Ãð¸ï ¥ÉÆæªÉÊqÀgïgÀªÀgÀÄ PÉÆnÖgÀÄªÀÅ¢®è. «ZÁj¹zÁUÀ cap §A¢®è CAvÀ w½¹zÀÝgÀÄ. EA¢£ÀªÀgÉUÀÆ «ªÀgÀUÀ¼ÀÄ §A¢zÉAiÉÄÃ JAzÀÄ £Á£ÀÄ w½zÀÄPÉÆArgÀÄªÀÅ¢®è. ªÉÄÃ°£À ªÉÆ¨ÉÊ¯ï ¹ªÀiï ¸ÀASÉåUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ ºÉÆÃzÀ ªÉÄ¸ÉÃeï «ªÀgÀUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆ¼ÀÄîªÀ ¥ÀæAiÀÄvÀß ªÀiÁrgÀÄªÀÅ¢®è."

In fact, Investigating Officer - P.W.16 has admitted that he had submitted a requisition to the service provider on 19.02.2013 for providing the call details relating to mobile No.9740065043. However, the call details which has been furnished by the service provider as per Ex.P- 60 would indicate that same has been generated on 14.02.2013 itself. Prosecution has relied on the alleged call which went from the mobile No.8722501872 of accused No.5 on 13.02.2013 to the mobile number 8904018313 belonging to the deceased. As already noticed herein above, call details of the deceased which has been relied upon as per Ex.P-61 has ended on 71 12.02.2013 itself. Undisputedly, mobile number 8722501872 was owned by one Mr.Mohammed Shafi and it stands in the name of said person. P.W.16 in his cross examination dated 07.05.2014 has admitted that neither Mr.Mohammed Shafi had surrendered said mobile number nor accused No.5 had applied for the said number being provided to her by the service provider. Though Investigating Officer claims that he had made attempts to apprehend Mr.Mohammed Shafi, he admits that neither he was arrested nor his statement was recorded. The possibility of the call having gone from Mr.Mohammed Shafi to the deceased cannot be ruled out. This hole in the line of investigation, ought to have been plugged by providing cogent evidence by the prosecution and in the absence of the link in the chain not being established, prosecution claim that chain of circumstances have been established cannot be accepted. The admission of Investigating Officer - P.W.16 stares at us and his admission reads:

"43. ¢.13-02-2013 gÀAzÀÄ 5£ÉÃ DgÉÆÃ¦ «ÄÃ£ÁQëAiÀÄ ªÉÆ¨ÉÊ¯ï¤AzÀ ªÀÄÈvÀ ¢°Ã¥À£À 72 ªÉÆ¨ÉÊ¯ïUÉ AiÀiÁªÁUÀ ¥sÉÆÃ£ïUÀ¼ÀÄ ºÉÆÃVªÉ CAzÀgÉ ¨É½UÉÎ 6.13 ¤«ÄµÀPÉÌ. 504 ¸ÉPÉAqï ªÀiÁvÁrzÁÝgÉ. CzÁzÀ £ÀAvÀgÀ ¨É½UÉÎ 6.35PÉÌ JgÀqÀÄ ªÉÄ¸ÉÃeïUÀ¼ÀÄ ºÉÆÃVªÉÉ. EzÀÄ 5£ÉÃ DgÉÆÃ¦AiÀÄ ªÉÆ¨ÉÊ¯ï ¸ÀASÉå JAzÀÄ ºÉÃ¼À¯ÁzÀ £ÀA.8722501872 ¢AzÀ CAzÀgÉ ¤d. F ªÉÆ¨ÉÊ¯ï ¸ÀASÉåUÉ ¸ÀA§A¢ü¹zÀAvÉ £Á£ÀÄ customer application form ¥ÀæwAiÀÄ£ÀÄß vÀj¹PÉÆArzÉÝÃ£É CAzÀgÉ ¤d. CzÀÄ ªÀiÁºÀªÀÄzï ±À¦ü J£ÀÄßªÀªÀ£À ºÉ¸Àj£À°è EzÉ CAzÀgÉ ¤d. ¸ÀzÀj ªÉÆºÀªÀÄzï ±À¦ü ªÉÆ¨ÉÊ¯ï ¹ªÀiï PÁqÀð£ÀÄß ¸ÀgÉAqÀgï ªÀiÁrzÀ §UÉÎ ¸À«Ãð¸ï ¥ÉÆæªÉÊqÀgï£À°è AiÀiÁªÀ ªÀiÁ»wAiÀÄÆ E®è. ¸ÀzÀj ¹ªÀiï PÁqïð ¥ÀqÉAiÀÄ®Ä 5£ÉÃ DgÉÆÃ¦ ¸À«Ãð¸ï ¥ÉÆæªÉÊqÀgïUÉ Cfð PÉÆlÖ §UÉÎ DPÉ AiÀiÁªÀÅzÉÃ ªÀiÁ»wAiÀÄ£ÀÄß ¤ÃqÀ°®è. F §UÉÎ ªÀiÁ»wUÁV £Á£ÀÄ ¸À«Ãð¸ï ¥ÉÆæªÉÊqÀgïUÉ AiÀiÁªÀÅzÉÃ PÉÆÃjPÉAiÀÄ°è ¸À°è¹gÀÄªÀÅ¢®è.

44. ªÉÆ¨ÉÊ¯ï ¹ªÀiï PÁqïð ¸ÀASÉå 8722501872 EzÀÄ 5£ÉÃ DgÉÆÃ¦ «Ä£ÁQëUÉ ¸ÀA§AzsÀ¥ÀlÖ ¹ªÀiï PÁqïð C®è CAzÀgÉ ¸ÀjAiÀÄ®è. zÀ¸ÀÛVjAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è DPÉAiÀÄ §½ EzÀÝ ªÉÆ¨ÉÊ¯ï ¸Émï£À°è D ¹ªÀiï PÁqïð EzÀÄzÀÝ®èzÉÃ CzÀÄ LJAE £ÀA§gïUÉ vÁ¼É ºÉÆAzÀÄwÛvÀÄÛ CAvÀ ºÉÃ¼ÀÄvÁÛgÉ. ¸ÀzÀj ªÉÆ¨ÉÊ¯ï£ÀÄß 5£ÉÃ DgÉÆÃ¦ AiÀiÁªÁUÀ J°èAzÀ RjÃ¢¹zÀgÀÄ JAzÀÄ £Á£ÀÄ ªÀiÁ»w ¥ÀqÉ¢gÀÄªÀÅ¢®è. ªÉÆºÀªÀÄzï ±À¦üAiÀÄ£ÀÄß zÀ¸ÀÛVj ªÀiÁr ºÉÃ½PÉ ¥ÀqÉAiÀÄ®Ä ¥ÀæAiÀÄwß¹zÉÝ DzÀgÉ ¹UÀ°®è.

45. ªÉÆºÀªÀÄzï ±À¦ü ªÀÄÈvÀ ¢°Ã¥À¤UÉ UÉÆwÛzÀÝ ªÀåQÛ CAzÀgÉ ¤dªÀ®è. ¥ÀjZÀAiÀÄ«gÀÄªÀ ªÉÆºÀªÀÄzï ±À¦ü¬ÄAzÀ ¢°Ã¥À¤UÉ ºÉÆÃzÀ ¥sÉÆÃ£ï PÁ¯ïUÀ¼À zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥ÀqÉ¹PÉÆAqÀÄ 5£ÉÃ DgÉÆÃ¦AiÀÄ ªÉÄÃ¯É ¸ÀÄ¼ÀÄî PÉÃ¸ÀÄ ºÁQzÉÝÃ£É CAzÀgÉ ¤dªÀ®è. EzÉÃ PÁgÀtPÁÌV £Á£ÀÄ ªÉÆºÀªÀÄzï ±À¦üAiÀÄ£ÀÄß «ZÁgÀuÉ ªÀiÁr®è CAzÀgÉ ¤dªÀ®è".

The Investigating Officer had all evidence before him when he recorded the voluntary statement of accused No.1 on 18.02.2013 at 6.00 p.m. Thus, all incriminating evidence which the prosecution has relied upon was available to the Investigating Officer for being recovered on the strength of the statement of accused No.1 as per Ex.P-51. However, this has not been done. Thus, recovery of M.Os.10 to 12 not being in consonance with Section 27 of Evidence Act, said recovery could not have been accepted by the learned Sessions Judge. Recovery cannot be made on the facts already discovered. A statement distinctly leading to discovery of a fact is admissible in evidence. No other portion of the statement implicating himself and others with the crime is admissible in evidence. Section 27 of the Evidence Act is an exception to the general rule as statement made before the police is not admissible in evidence cannot be doubted. Said provision cannot be pressed into service to 're-discover' the discovered fact as already observed by us hereinabove.

43. Under Mahazar dated 14.02.2013 - Ex.P-2, following recoveries came to be made:

     (i)     Dead body of Sri Dileep Kumar

     (ii)    Motor bike - KA -18-U-5088 - M.O.1

     (iii)   Titan Wrist Watch - M.O.4

     (iv)    Two Towels - M.O.2 and M.O.3

     (v)     T-shirt of deceased - M.O.5

     (vi)    Jeans pant of the deceased - M.O.6

     (vii)   Blood stained mud - M.O.7

     (viii) Mud - M.O.8

Post arrest, voluntary statements of accused Nos.3 and 4 came to be recorded on 19.02.2013 as per Exs.P-53 and P-54. The information given under these statements had already been furnished by accused No.1 on 18.02.2013 as per Ex.P-51 and recovery of M.O.1 to M.O.8 could have been effected directly on the information given by accused No.1 on 18.02.2013 as per Ex.P-51 without any loss of time and this exercise having not been done, voluntary statements of accused Nos.2, 3 and 4 as per Exs.P-52 to P-54 would be inadmissible or pale into insignificance. This proposition receives support from the 75 judgment of Hon'ble Apex Court in the matter of VIJENDER vs STATE OF DELHI reported in (1997)6 SCC 171, whereunder it came to be held:

"17. Another elementary statutory breach which we notice in recording the evidence of the above witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that in consequence of information received from the three appellants on 30-6- 1992 they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was recovered on 27-6-1992 and therefore the question of discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act if information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case -- evidence could not be led in respect thereof".

44. The evidence of P.W.3 - Jayashankar has been relied upon by the learned Sessions Judge to arrive at a conclusion that it is in corroboration with the contents of Exs.P-27 to P-33 and it is also held that his evidence corroborates with the evidence of P.W.16 - 76 Investigation Officer with regard to seizure of mobile phone of the deceased apart from seizure mahazar - Ex.P-2 drawn at the bridge, seizure mahazar of cooling glass belonging to the deceased, receipt for having purchased two (2) towels by accused persons from Panduranga Textiles and seizure mahazar - Ex.P-32 of sample towels.

45. As to how there is corroboration with the evidence of Investigating Officer - P.W.16 with the evidence of P.W.3, has not been discussed by the learned Sessions Judge. Ex.P-27 is the mahazar under which prosecution claims that accused Nos.1 to 4 lead P.W.16, P.W.3 and C.W.2 to the place where dead body and motorbike was lying. As already noticed hereinabove, in the voluntary statement of accused No.1 these facts had already been spoken to by him. In other words, police already knew this fact and as such we have held this evidence of P.W.3 leading to the recovery of dead body and the bike as per mahazar (Ex.P-27) is not admissible in the light of law laid down by Hon'ble Apex Court in the 77 matter of VIJENDER vs. STATE OF DELHI reported in (1997) 6 SCC 171. According to the prosecution, smashed mobile phone of accused No.5 -M.O.15 came to be seized under Ex.P-28. However, P.W.3 does not state as to whom the said MO.15 belonged to and he does not state on what basis accused had furnished said information based on which seizure of M.O.15 came to be made.

P.W.3 has deposed that car-jack (MO.16) was recovered at the instance of accused No.1. Said jack is a commonly used article and it was not even sent for chemical examination to Forensic Science Laboratory. We would delve upon this car jack (MO.16) at a later stage. P.W.3 is from the same village as that of P.W.1. He admits that he was at the jodi-setuve from 9.00 a.m. i.e., earlier to the arrival of police, who does not speak about the two towels (MOs.2 and 3) near the place where body of the deceased was found. In the cross- examination of P.W.3 he was confronted with two photographs (Exs.D-1 and D-2) and he has identified CW-12 found in the photographs (who was not examined 78 by the prosecution - who is also witness to Exs.P-27, P-28, P-30, P-32) being present at the spot. P.W.3 was not in a position to identify the location where photographs (Exs.D-3 and D-4) were taken. He also admits that police station is at a distance of 30 kms from his house. Prosecution has failed to explain as to why persons residing or found in the vicinity of incriminating material found had not been summoned as witness to the seizure mahazar. This exercise was not undertaken by the prosecution. In the light of these material contradictions, the conclusion arrived at by the learned Sessions Judge to the effect that evidence of P.W.3 is in full corroboration with contents of Ex.P-27 to P-33 and same being in corroboration with evidence of P.W.16 is erroneous.

46. Prosecution has also relied upon the evidence of P.W.3 to establish car-jack (MO.16) had been used to assault the deceased over his head and as a result of such assault, it resulted in grievous injuries being sustained by deceased resulting in consequential death 79 of Sri Dilip Kumar. Based on the recovery of incriminating articles including Car Jack - M.O.16, learned Sessions Judge has arrived at a conclusion that chain of circumstances leading to the death of Sri Dilip Kumar is proved by the prosecution. M.O.16 came to be recovered under Ex.P-30 to which, P.W.3 is a mahazar witness. Prosecution claims to have recovered the said Jack under Ex.P-30 from the gutter as shown by accused Nos.1 to 4. The very recovery of the incriminating materials itself is in serious doubt.

47. P.W.3 is a witness to Exs.P-30, P-26, P-27, P- 28, P-32 and the distance between his place of residence and rural police station being 30 kms, prosecution was required to explain as to why the witnesses residing in the vicinity of either Cheelanayakana Village or the residents found near the Basavanna Temple were not examined. He is from the same village as that of the complainant.

48. Though P.W.3 has denied he being a relative of P.W.1, the fact of complainant and himself being from 80 the same village, their proximity cannot be ruled out. Thus, statement of P.W.3 will have to be examined with utmost care and caution. The Jack - M.O.16 which came to be seized under Ex.P-30 was not sealed and no explanation whatsoever is forthcoming in this regard. In fact, it is the definite case of the prosecution that M.O.16 had been used by accused No.1 to assault the deceased on his head and injuries sustained by the deceased over his head which had resulted in his death. If it were to be so, the Jack being the material evidence, ought to have been stored in a sealed cover and it should have been sent for Forensic Science Laboratory. This exercise was not done and thus, lacuna in the investigation is glaring.

In fact, the Doctor - P.W.8 who conducted the post mortem of the deceased has deposed that "if a person has been assaulted with a Jack like M.O.16 there is likelihood of causing death" as per Ex.P-37. Despite this report dated 09.05.2013 - Ex.P-37 being available on record and Jack - M.O.16 having been seized under mahazar - Ex.P-30 on 19.02.2013 itself, nothing prevented the prosecution to send M.O.16 for chemical 81 examination. Thus, the very seizure of M.O.16 is shrouded with suspicious circumstances.

49. Learned Sessions Judge has recorded a finding to the effect that evidence of P.W.16 is in corroboration with the evidence of P.W.15 who has spoken about Ex.P.44 and P-45 namely, the computer print out of the photographs at Toll Plaza and the Compact Disc - CD, disclosing movement of Scorpio vehicle bearing registration No.KA 02 - Z 8658 which was allegedly used in the commission of the offence. The Scorpio vehicle bearing registration No. KA-02-Z-8658 came to be seized in the presence of P.W.16 under seizure Mahazar - Ex.P-35 in the presence of two witnesses Sriyuths K.N.Ramaiah and Anand Kumar - P.W.7. Said witness i.e., P.W.7 admits in his cross examination that there are houses surrounding the Rural Police Station where the vehicle was seized. As to why persons residing in the vicinity of Rural Police Station, Chickmagalur where the vehicle was parked had not been examined, no explanation is forthcoming and 82 P.W.7 is a close relative of the deceased namely, junior uncle and he hails from the same village where father of P.W.1 resides. This fact is admitted by the Investigating Officer - P.W.16 in his cross examination dated 07.05.2014 vide paragraph 69. P.W.7 has also admitted that C.W.2 (Sri R.S.Kotturegowda) is her husband and C.W.2 is the father of the deceased. Section 100(4) of Cr.P.C. mandates that two respectable citizens of the locality are to be called upon to be the witness to a search. It has been held by Hon'ble Apex Court in the case of STATE OF U.P. vs ARUN KUMAR GUPTA reported in (2003)2 SCC 202 that selecting of panchas from amongst close relatives of the deceased would give rise for suspicion. It has been further held :

"16. In this regard, the prosecution relies on the evidence of PW 4. We have earlier noticed that PW 4 is not a resident in the immediate proximity of the house of the respondent. He belongs to the same biradari of the complainant and lives behind the house of the investigating officer, PW 9. We find no reasonable explanation, why such a person was called to be a witness to the recovery when there were any number of people available and who are residents of the houses in the 83 immediate proximity of the house of the respondent. We also notice from the records that a large number of people were present at the time of the recovery, therefore, the prosecution should have come forward with some explanation, why PW 4 was so selectively chosen to be the witness for the recoveries. We also notice, though the preparation of memos of the recoveries took a long time, still for all the recoveries PW 4 is a common witness. There is also considerable discrepancy in regard to the manner in which PW 4 came to be a witness to the recoveries. From the evidence on record, it is seen that at one place it is stated that PW 4 had come to the house of the respondent on hearing the commotion that took place because of the breaking open of the lock of the house. At another place, we find that the IO, PW 9 had summoned PW 4 from his house to be a witness for the recovery. This discrepancy also adds to the doubt in regard to the evidence of PW 4. Therefore, in our opinion as held by the High Court, it is not safe to rely on the evidence of this witness. PWs 7 and 9 who were police officers are also witnesses, who speak about the recoveries made from the house of the respondent. PW 9 at one point says that all the recoveries in question were made by him and he left the house of the respondent around 11.00 or 11.30 p.m. in the night of 28-5-1988, while PW 7, who was also present at that point of time says that PW 9 was there throughout the night of 28-5- 1988 till the morning of 29-5-1988 when the recoveries were completed. Thus we find a material contradiction in the evidence of these two witnesses. From the records, we see that the recoveries of the bloodstained knife and the bloodstained earth were made on 29-5-1988. And according to PW 9 he had made the 84 recoveries and he had left the place by about 11.30 p.m. in the night. It is not possible to reconcile these two facts. If actually PW 9 was the person responsible for preparing the recovery memos then, the date 29th May does not fit into the prosecution case since according to this witness himself he left at about 11.30 in the night of 28-5-1988. Therefore, there is force in the arguments of the learned counsel for the respondent that these recoveries cannot be believed, more so in the background of the fact that the bloodstained knife and the bloodstained earth were not sent to the serologist. This Court in the case of Lakshmi Singh v. State of Bihar [(1976) 4 SCC 394 : 1976 SCC (Cri) 671 : AIR 1976 SC 2263] has stated that: (SCC p. 402, para 14) That apart, Investigating Officer ought to have called upon the Scientific Officer of RFSL to collect any blood stains found in the Scorpio vehicle before the seizure of the vehicle under Ex.P-35. The carrier of the vehicle is not examined namely, person who drove the vehicle from Bengaluru to Chikmagalur is not examined. Hence, seizure of Scorpio vehicle is held to be doubtful.

50. The other witness to the seizure mahazar - Ex.P-35 namely, Sri K.N.Ramaiah has not been examined. In fact, P.W.7 states in his examination-in- chief that when middle side door of the vehicle was 85 opened, he had found blood stains on the seat and on the mat. He further states that said vehicle was seized under Ex.P-35 on the ground that it was required to be sent to RFSL, Mangalore for chemical examination.

51. The specific case of the prosecution is Scorpio vehicle was taken into custody on 18.02.2013. According to Investigating Officer - P.W.16, HC 211 & PC 89 were entrusted the job of tracing the vehicle and they had produced the Scorpio vehicle before him on 23.02.2013 betweens 1.00 p.m. to 1.30 p.m. According to Investigating Officer, the deputed police officials went to the house of P.W.9 - owner of the Scorpio vehicle on 23.02.2013 and took custody of the vehicle. It is rather intriguing that police officials - H.C.No.211/C.W.26 and P.C.No.89/C.W.27 who are alleged to have seized the Scorpio vehicle - M.O.20 have not been examined. In fact, their statements itself was not recorded by the Investigating officer, which is a serious flaw in the investigation. In the charge sheet, C.W.26, C.W.27 and C.W.28 have been cited as witness for arrest of accused 86 Nos.1 to 4 and it is C.W.26 who is said to have seized M.O.20 from P.W.9 and he has not been examined. P.W.16 in his cross examination at paragraph No.68 admits C.W.26 and C.W.27 produced M.O.20 before him on 23.12.2013. Whereas, P.W.9 - owner of the vehicle has deposed that police officials from Chikmagalur who had come to his house had found vehicle - M.O.20 in his house on 18th February, 2013 itself and had seized it. In fact, there is no clarity with regard to the actual date of seizure of the vehicle - M.O.20. P.W.9 has stated in his deposition that accused No.3 on 09.02.2013 at about 9.30 a.m. had taken the Scorpio vehicle bearing registration No.KA-02-Z-8658 and returned the said vehicle on 14.02.2013 at about 2.30 p.m. He has further deposed that accused No.3 on same day had asked him whether he had any other vehicle available for being taken on hire for marriage purposes and accused No.3 is said to have taken Innova vehicle along with a temporary driver on 14.02.2013 and said vehicle is said to have been returned on 15.02.2013 in the evening at about 6.00 p.m. Thus, two vehicles were taken by accused 87 No.3. Which of the two vehicles are said to have been used for the alleged commission of offence, even according to the prosecution, has remained a mystery though it is claimed Scorpio Vehicle - M.O.20 had been used. Of course, the prosecution has made an attempt to rely upon the vehicle bearing registration No.KA-02-Z- 8658 (M.O.20) to contend same had been used in the commission of offence. Same cannot be accepted since the very seizure of the said vehicle under Ex.P-35 is shrouded with mystery. On the one hand, prosecution claims it was seized in the Kalyananagar, Rural Police Station, Chikmagalur Town under Ex.P-35 and said vehicle, according to P.W.9, was in his house and it was taken by Chikkamagalur police on 18.02.2013. It is not the case of prosecution that vehicle was found in Chikkamagalur or any other place. As noticed herein above, the police officials who took the vehicle from Bangalore to Chikmagalur have not been examined. There was no panchanama drawn at the house of P.W.9 where the vehicle was found. P.W.9 has deposed as under:

"5. I did not xxx they are all police. No panchanama was drawn in front of my house while taking the Scorpio vehicle/MO.20 by the police. No writings were done near my house about the position and the inside portion of the vehicle. Next day xxx 19.02.2013."

52. According to P.W.16, Head Constable - 211 and P.C.No.89 had caused production of the said vehicle before him on 23.02.2013. He has further deposed for the vehicle being taken to Chickmagalur by road, it has to cross Lanco-Devihalli Toll Plaza and no documents came to be produced in this regard. He has deposed as under:

"¨ÉAUÀ¼ÀÆj¤AzÀ aPÀÌªÄÀ UÀ¼ÀÆjUÉ §gÀ¨ÉÃPÁzÀgÉ LANCO zÉÃ«ºÀ½î mÉÆÃ¯ï ¥Áè¸ÁzÀ ªÀÄÆ®PÀªÉÃ §gÀ¨ÉÃPÀÄ CAzÀgÉ ¤d. ªÀÄÄzÉÝ ªÀiÁ®Ä.20£ÀÄß ¸ÀzÀj mÉÆÃ¯ï ªÀÄÆ®PÀ ¨ÉAUÀ¼ÀÆj¤AzÀ vÉUÉzÀÄPÉÆAqÀ §UÉÎ zÁR¯ÁwUÀ¼À£ÀÄß £Á£ÀÄ ºÁdgÀÄ¥Àr¹gÀÄªÀÅ¢®è. He would also state that blood stains were found in the center seat, mat and on the belt inside the vehicle.

P.W.9 the owner of the vehicle from whose custody the vehicle was taken has not stated about any blood stains in the car mat or seat belt. Before seizure of the car under Ex.P-35 - mahazar, Scientific Officer of RFSL 89 ought to have been called to collect any blood stains and the scrapings should have been preserved in safe custody. P.W.16 also deposes that he had sent the car -

M.O.20 to RFSL along with other articles through his staff. In fact, the alleged report of seizure of the vehicle -

M.O.20 submitted by H.C.No.211 and P.C. - Sri Basavaraju was not produced before the Sessions Court and this fact is also admitted by P.W.16 in his cross examination vide paragraph 68. Undisputedly, the vehicle was not sent for Forensic Science Laboratory for evaluation or examination of the blood stains found in the said vehicle. It is evident from the deposition of P.W.9 that Scorpio vehicle was taken into custody of the police on 18.02.2013 but seizure mahazar is conducted on 23.02.2013 as per Ex.P-35. These material irregularities and contradictions in the evidence of P.W.7, P.W.9 and P.W.16 which are vital would go to the root of the case and create a serious doubt with regard to use of the said vehicle in the commission of alleged offence and accused Nos.1 to 4 having travelled in the said vehicle also raises a serious doubt.

53. In fact, in the voluntary statement of accused No.1 - Ex.P-51 recorded on 18.02.2013, he has stated before the Investigating Officer the use of Scorpio vehicle bearing registration No.KA-02-Z-8658 and yet, on 19.02.2013 it was not seized on the said day or immediately thereafter and even according to Investigating Officer, it was seized on 23.02.2013 under Ex.P-35. Voluntary statement of accused No.3 came to be recorded on 19.02.2013 and it is the definite case of prosecution that Vehicle - M.O.20 came to be borrowed by accused No.3 from P.W.9. Thus, nothing prevented the Investigating Officer to seize M.O.20 on 19.02.2013 itself. The evidence of P.W.16 in this regard would raise a serious doubt with regard to the seizure of the Scorpio vehicle - M.O.20 under the seizure panchanama - Ex.P-

35. The evidence of P.W.16 reads:

"¢: 18-2-2013 jAzÀ 23-2-2013gÀ CªÀ¢üAiÀÄ°è ªÀÄÄzÉÝ ªÀiÁ®Ä:20 ¸ÁÌ¦ðAiÉÆÃ ªÁºÀ£ª À À£ÀÄß d¦Û ªÀiÁqÀ®Ä vÉÆAzÀgÉ EvÁÛ CAzÀgÉ ¥ÀvÉÛ ªÀiÁqÀ®Ä ¸ÀªÀÄAiÀÄ »r¬ÄvÀÄ"

"ªÀÄÄzÉÝ ªÀiÁ®Ä:20 22-2-2013 gÀAzÀÄ ªÀ±À¥Àr¹PÉÆArzÁÝgÉ JAzÀÄ ªÀiÁ°ÃPÀ w½¹zÁÝ£É CAzÀgÉ ¤d".

"ªÀÄÄzÉÝ ªÀiÁ®Ä:20£ÀÄß ¨ÉAUÀ¼ÀÆj£À°è ¸Áé¢üÃ£ÀPÉÌ vÉUz É ÀÄPÉÆAqÀ ¸ÀÜ¼ÀzÀ°èAiÉÄÃ ªÀÄºÀdgï ªÀiÁqÀ®Ä vÉÆAzÀgÉ EvÁÛ EAzÀgÉ ¹§âA¢UÀ¼ÀÄ ªÀ±À¥Àr¹PÉÆAqÀÄ oÁtÂAiÀÄ°è ºÁdgÀÄ¥Àr¹zÁÝgÉ. ¸ÀzÀj ¹§âA¢UÀ¼ÀÄ JAzÀgÉ ºÉZï¹ 211 ºÁUÀÆ ¦¹ §¸Àªg À ÁdÄ. F §UÉÎ ºÉZï¹ 211 ¢:23-02-2013 gÀAzÀÄ ªÀgÀ¢ PÉÆnÖzÁÝgÉ.

"ªÀÄÄzÉÝ ªÀiÁ®Ä:20 gÀ ªÉÄÃ¯É gÀPÛÀzÀ PÀ¯É EzÀÝ §UÉÎ ¹§âA¢AiÀÄªÀgÀ ªÀgÀ¢AiÀÄ°è w½¹®è".

54. From the perusal of deposition of P.W.16, it would indicate there was no impediment for the Investigating Officer to have seized the vehicle at Bengaluru itself, where the vehicle - M.O.20 was found and is said to have taken from P.W.9 by H.C.- 211 (C.W.26) and P.C. - Sri Basavaraj (C.W.27), who have not been examined.

55. The documentary evidence relied upon by the prosecution regarding use of the aforesaid Scorpio vehicle in the commission of offence are the computer printouts - Ex.P-44 and CCTV footage of Toll Plaza - Ex.P-48 relating to Devihalli Toll Plaza dated 13.02.2013 92 and 14.02.2013. The marking of Ex.P-44 was objected to by the defence counsel as already observed herein above and Ex.P-48 was also admitted to evidence subject to objection. The finding recorded by us vide paragraphs 27 to 32 referred to supra with regard to electronic evidence having no evidentiary value if it is not accompanied by a certificate issued under Section 65-B of the Evidence Act would squarely be applicable to these Exhibits namely, Exs.P-44 and P-48 in the light of law laid down by Hon'ble Apex Court in the case of ANWAR P.V. vs. P.K.BASHIR AND OTHERS referred to supra as these two exhibits are not accompanied by the certificate prescribed under Section 65-B of Evidence Act.

56. P.W.15 through whom Ex.P-44 and Ex.P-48 came to be marked had been certified by the Officers of the Toll Plaza company. He has also admitted that only back portion of the car is visible from photo and it cannot be made out from which Toll plaza the car has moved. He further admits vide paragraph 8 of the cross examination dated 10.04.2014 that on either side of the 93 road "big cameras" has been installed and in the said cameras, it is not only movement of the vehicles but also movement of the persons is recorded. However, the clippings from the said cameras, which would have been the best piece of evidence, were not produced. On this issue, Investigating Officer - P.W.16 has been cross examined and he admits that he had not found out as to whether big cameras are located at the toll plaza or not or in other words, he has pleaded his ignorance. His admission reads:

"54) AiÀiÁªÀÅzÉÃ £Áå¶£À¯ï ºÉÊªÉÃUÀ¼À°è EgÀÄªÀ mÉÆÃ¯ï ¥Áè¸ÁUÀ½UÉ ¨sÉÃn PÉÆlÄÖ C°è K£É¯Áè ªÀåªÀ¸ÉÜ EzÉ JAzÀÄ ¥ÀgÀ²Ã°¹¢ÝgÁ CAzÀgÉ £ÉÆÃrzÉÝÃ£É ºÁUÀÆ w¼ÀÄªÀ½PÉ EzÉ.

LANCO mÉÆÃ¯ïUÉ zÉÃ«ºÀ½îUÉ £Á£ÀÄ ¨sÉÃn PÉÆnÖ®è. ¸ÀzÀj mÉÆÃ¯ï ¥Áè¸ÁzÀ°è MAzÀÄ ªÁºÀ£À mÉÆÃ¯ï §½ §AzÁUÀ ªÁºÀ£ÀzÀ £ÀA§gï ºÁUÀÆ ZÁ®PÀ£À ¥sÉÆmÉÆÃ ¹¹ PÁåªÉÄgÁzÀ°è gÉPÁqÀð DUÀÄvÀÛzÉ CAzÀgÉ £Á£ÀÄ w½zÀÄPÉÆAqÀ ªÀÄnÖUÉ zÉÃ«ºÀ½î mÉÆÃ¯ï ¥Áè¸ÁzÀ°è D ªÀåªÀ¸ÉÜ E®è. PÉÃªÀ® ªÁºÀ£z À À §tÚ AiÀiÁªÀ ªÁºÀ£À ºÁUÀÆ CzÀgÀ £ÀA§gï K£ÀÆ JA§ÄzÀÄ ªÀiÁvÀæ ¹¹ PÁåªÀÄgÁ°è UÉÆvÁÛUÀÄvÀÛzÉ CAvÀ ºÉÃ¼ÀÄvÁÛgÉ. zÉÃ«ºÀ½î mÉÆÃ¯ï ¥Áè¸Á¢AzÀ 50 Cr zÀÆgÀzÀ°è mÉÆÃ¯ï ¥Áè¸ÁzÀ JgÀqÀÆ §¢UÉ zÉÆqÀØ zÉÆqÀØ ¹¹ PÁåªÉÄgÁUÀ¼ÀÄ EgÀÄªÀÅzÀjAzÀ mÉÆÃ¯ï ¥Áè¸Á zÁn ºÉÆÃUÀÄªÀ J¯Áè ªÁºÀ£ÀUÀ¼À avÀæ ¹¹ PÁåªÉÄgÁzÀ°è ªÀÄÆqÀÄvÀÛªÉ CAzÀgÉ £À£U À É UÉÆwÛ®.è ¸ÀzÀj 94 ªÁºÀ£U À À¼À°è JµÀÄÖ d£À EzÀÝgÀÆ JA§ÄzÀÄ PÀÆqÀ zÉÃ«ºÀ½î mÉÆÃ¯ï ¥Áè¸ÁzÀ §½ EgÀÄªÀ ¹¹ PÁåªÉÄgÁzÀ° PÁtÄvÀÛzÉ CAzÀgÉ £À£ÀUÉ UÉÆwÛ®è."

(emphasis supplied by us)

57. Admission of P.W.15 and P.W.16 noted herein above, would indicate that best evidence available was not produced by the prosecution or in other words, investigation is flawed and there is non-production of best evidence and as such, adverse inference will have to be drawn against the prosecution. This view also gets support from the authoritative pronouncement of Hon'ble Apex Court in the matter of TOMASO BRUNO & ANOTHER vs STATE OF UTTAR PRADESH reported in (2015)7 SCC 178, whereunder it came to be held:

"26. The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non- production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made".

Thus, we are of the considered view that prosecution had failed to prove not only seizure of M.O.20 but also its movement in the vicinity of scene of crime in the light of aforestated discussion.

58. The prosecution has also relied upon evidence of P.W.4 to contend that the accused Nos.1 to 4 after allegedly assaulting the deceased had purchased two towels - M.O.2 and M.O.3 which was seized under Ex.P-2 from the shop of P.W.4. It is further contended by the prosecution that two new towels as per M.O.18 (model two towels) was purchased by accused No.3. P.W.4 whose evidence has been relied upon by the prosecution to contend that accused had purchased towels from a shop of P.W.4 on 13.02.2013 have produced the Bill book - Ex.P-31. P.W.4 admits in his cross examination that Ex.P-31 does not bear his signature. He also admits that in Ex.P-31, the word "towel" has been erased. He also admits that date has been rewritten in the bill - Ex.P-31. In his cross examination dated 11.09.2013 he admits that he cannot 96 identify the persons who came to purchase the towels. He further admits that 15 to 20 customers visit his shop everyday and as such, he cannot definitely say. He further admits that he is not in a position to recognise the customers who come and purchase from his shop. His admission reads to the following effect:

"3. The distance between my shop xxx I cannot definitely say. It is true to suggest that I am not in a position to recognise the customers who have come and purchase in my shop. In my shop, all types of clothes are sold."

He has deposed that he does not know whether the color of the towels had been mentioned or not in the seizure mahazar - Ex.P-32 . His admission is to the following effect:

2. My shop ...... obtained the receipt. I do not know whether color of the towels have been mentioned in seizure mahazar - Ex.P-32. In Ex.P-31 I have mentioned two towels. I have mentioned in Ex.P-31as Grace towels, but in Ex.P-31 the word towel has been erased. I do not know when the word towel has been erased. It is true to suggest that in Ex.P-31 the date has been rewritten, but witness volunteers that because of mistake, it has been rewritten."

In the light of above contradictions, the evidence of P.W.4 is not safe to be believed and the transaction of sale of towels - M.O.2 and M.O.3 is shrouded with mystery. That apart, Ex.P-31 appears to be tampered and created for the purposes of the case. Hence, we are of the considered view that it is not safe and appropriate to rely upon.

In the light of evidence discussed herein above, we are of the considered view that judgment of conviction and order of sentence passed by the learned Sessions Judge is to be set aside as the material contradictions in the evidence has been erroneously ignored. As such, we answer point Nos.1 and 2 formulated herein above in favour of the appellants and against the prosecution. RE: POINT NO.(3)

59. In the light of aforestated discussions, we are of the considered view that contentions raised in the respective appeals deserves to be accepted and 98 consequently, appeals deserves to be allowed.

For the reasons aforestated, we proceed to pass the following:

JUDGMENT

(i) Criminal Appeals are allowed.

(ii) Judgment of conviction and order of sentence dated 30.06.2014 passed by the Principal Sessions Judge, Chikmagalur in S.C.No.62/2013 against the appellants for the offences punishable under Sections 302 and 201 read with Sections 120B and 34 IPC is set aside and appellants are acquitted of all the charges levelled against them.

(iii) Appellants shall be released forthwith if they are not required in any other case.

(iv) Bail bond executed by appellant-

accused No.5 and the surety shall stand cancelled.

                              99




     (v)    Fine amount if any deposited by any of

     the    appellants,      is     ordered      to   be

refunded to the appellants after the appeal period is over.

(vi) Registry is directed to intimate the concerned Jail authorities by sending operative portion of this order without brooking any delay.

SD/-

JUDGE SD/-

JUDGE *sp/DR

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