Bangalore District Court
State By; vs Ravikumar @ Ravi on 28 December, 2022
1 SC No.1011/2010
KABC010211322010
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 28th day of December 2022
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
SESSIONS CASE No.1011/2010
COMPLAINANT : State by;
CCB Police, N.T.Pete, Bengaluru.
(By Public Prosecutor)
// Vs.//
ACCUSED : 1. Ravikumar @ Ravi
S/o Chandrappa,
Aged about 28 years,
Residing at No.58, 3rd Cross,
R.M.S. Colony, Sanjaynagara,
Bengaluru - 94.
2. Ashwath
S/o Maregowda,
Aged about 25 years,
2 SC No.1011/2010
Residing at No.126, 80 Feet
Road, Sanjaynagara Main Road,
Near Canara Bank,
Ashwathnagara,
Bengaluru - 94.
3. Chethan
S/o Muniyellappa,
Aged about 20 years,
Residing at No.166, 2nd Main, 2nd
Cross, Flour Mill Road,
Ashwathnagara, Sanjaynagar
Post, Bengaluru - 94.
4. Shivaprathap
S/o Mahadevaswamy,
Aged about 23 years,
Residing at No.4/60, 7th Main,
4th Block, Nandhini Layout,
Bengaluru - 96.
5. Bhooshith.B
S/o Bhagawantha Rao,
Aged about 19 years,
Residing at No.2, 6th Main,
Vasanthanagara,
Bengaluru - 52.
6. Kumara @ Anjaneya
S/o Mariyaiah,
Aged about 30 years,
Residing at No.182, 4th Cross,
2nd Main, K.V.K. Layout,
Deepanjalinagara, Mysore Road,
Bengaluru - 26.
3 SC No.1011/2010
7. Sandhya @ Sanjana
D/o Brammachari.K.N.,
Aged about 24 years,
Residing at No.207, 3rd Cross,
K.E.B. Layout, Sanjaynagara,
Bengaluru - 94.
(A1 & 4 by Sri.I.M.,
A2 by Sri.MRN,
A3 by Sri.M.S.,
A5 by Sri.R.B.N.,
A6 by Sri.M.A.,
A7 by Sri.SNC, Advocates)
1. Date of commission of : 09.04.2010
offence
2. Date of filing of the : 10.04.2010
complaint
3. Date of arrest of A1 : 14.04.2010
Date of release of A1 on : 24.08.2021
interim bail
Voluntary surrender of A1 :
25.10.2021
Date of release of A1 :
11.11.2021
Re-arrest of A1 : 10.03.2022
Date of release of A1 : 31.10.2022
4. Date of arrest of A2 : 14.04.2010
Date of release of A2 : 26.09.2012
Date of re-arrest of A2 : 31.08.2018
Date of release of A2 : 14.06.2021
5. Date of arrest of A3 : 14.04.2010
Date of release of A3 : 01.04.2011
Date of re-arrest of A3 : 31.08.2018
Date of release of A3 : 05.06.2021
4 SC No.1011/2010
6. Date of arrest of A4 : 14.04.2010
Date of release of A4 : 30.09.2010
Date of re-arrest of A4 : 31.08.2018
Date of release of A4 : 11.06.2021
7. Date of arrest of A5 : 14.04.2010
Date of release of A5 : 03.08.2010
Date of re-arrest of A5 : 31.08.2018
Date of release of A5 : 03.06.2021
8. Date of arrest of A6 : 14.04.2010
Date of release of A6 : 28.07.2010
Date of re-arrest of A6 : 31.08.2018
Date of release of A6 : 18.06.2021
9. Date of arrest of A7 : 14.04.2010
Date of release of A7 : 17.07.2010
Date of re-arrest of A7 : 31.08.2018
Date of release of A7 : 14.06.2021
10. Name of the first informant : Smt.Anjali Sharath
11. Offences complained of : U/s 342, 364(A), 396, 302,
201, 120(B), r/w Sec.34 of
IPC
12. Date of commencement of : 26.09.2011
recording the evidence
13. Date of closing of the : 27.07.2017
evidence
14. Finding of the Court : Accused No.1 to 7 are
acquitted
15. Date of pronouncement of : 28.12.2022
Judgment
(A.V.PATIL)
LXIII Addl. City Civil and Sessions
Judge (CCH-64), Bengaluru City
5 SC No.1011/2010
JUDGMENT
The accused No.1 to 7 have been charge-sheeted by the Assistant Commissioner of Police, CCB, Bengaluru, in Sanjayanagar PS Cr.No.101/2010 for the offences punishable u/s 342, 364(A), 396, 302, 201, 120-B r/w Sec.34 of IPC.
2. The brief facts of the case of prosecution are as under:-
CW1/Smt.Anjali Sharath Kumar lodged Ex.P1/complaint on 10.04.2010 at about 12.15 p.m., before CW108/ Sri.Shashidhar, PSI, Sanjayanagar Police Station, about missing of her husband Dr. Sharath Kumar since 11.30 a.m. on 09.04.2010. On the basis of the said complaint, Ex.P79/FIR came to be registered in Sanjayanagar Police Station.
CW3/Mohammed Anwar filed Ex.P12/complaint on 10.04.2010 at about 11.00 a.m., before Amruthuru Police Station, Kunigal Taluk, about noticing the unknown male dead body. As per the allegations made in the complaint, a male was murdered and thrown the body near the bridge situated near to his land at Kannaguni village. On the basis of the said complaint, Ex.P66/FIR came to 6 SC No.1011/2010 be registered in Amruthur Police Station for the offence u/s 302, 201 of IPC and conducted Ex.P13/Inquest Mahazar in respect of the alleged dead body.
CW1/Smt.Anjali Sharath filed second complaint as per Ex.P2 on 11.04.2010 at about 08.45 p.m., before CW11/Sri. Nagaraju, Police Inspector, Sanjayanagara Police Station, about committing murder of her husband Dr. Sharath Kumar for ransom. On the basis of the said complaint, CW111 registered Ex.P65/FIR in Sanjayanagara Police Station for the offence u/s 364(A) of IPC.
As per Ex.P111/Memo, the Sanjayanagara Police Station Crime No.101/2010 transferred to CW115/B.N.Nyamagowda, Asst. Commissioner of Police, Special Enquiry Squad, CCB, Bengaluru City for further investigation. On the basis of the said order, CW115 received the case records, conducted the investigation and found that accused No.1 to 7 for wrongful gain hatched a plan of kidnapping the husband of CW1/Dr.Sharath Kumar. Accused No.1 by submitting forged documents obtained Reliance Mobile Phone No.9019586749 in the name CW76 and from that phone called the mobile phone of deceased 7 SC No.1011/2010 at 10.56 a.m., 11.07 a.m., 12.02 p.m. on 09.04.2010 and asked him to come to his house to give treatment. To bring Dr.Sharat Kumar accused No.1 sent accused No.4 and 6 to the Adarsha Clinic of and they abducted the deceased in Qualis vehicle bearing Reg.No.KA-04/B-2568 and bring to the house of accused No.1. In that house, accused wrongfully confined, tied the hands and legs of the deceased with rope and by showing the knife, asked him to give Rs.50 lakhs cash and golden ornaments and forcibly made the deceased to call to the mobile of CW19 and asked him to give four sets of golden ornaments to CW1. Thereafter, accused No.4/ Shivaprathap went to the house of CW1 and collected 401.08 Grams of golden ornaments. Thereafter accused No.1 to 3 forcibly taken the deceased in Omni Car bearing No.KA-03/C-2729 belongs to accused No.2 by putting a monkey cap on the head of the deceased and taken him on Kunigal road and again forced the deceased to call CW19 to give some more ornaments and asked to hand-over the same in the medical store of CW18/Nageshwar Rao. As per the instructions of accused No.1, accused No.5 collected 212.98 Grams of golden ornaments from 8 SC No.1011/2010 CW18. Accused No.1 to 3 on the way to Kannaguni, by strangulating the neck of the deceased with the help of rope, killed him. To destroy the evidence, threw the dead body at a drainage situated near Kannguni. According to the Investigating Officer, CW20/Deenamma saw the accused No.4 and 6 taking the deceased from clinic, CW27 and 28 saw the accused No.1 to 3 taking the deceased from the house of accused No.1, CW1/Smt. Anjali Sharath saw the accused No.4 and CW18/Nageshwara Rao saw the accused No.5 while taking the golden ornaments. Accordingly, filed the charge-sheet against the accused No.1 to 7 for the offences punishable u/s 342, 364(A), 396, 302, 201, 120-B r/ w Sec.34 of IPC.
3. After filing the charge-sheet, the learned 1 st ACMM, Bengaluru has registered the case in CC No.27039/2010 against the accused No.1 to 7. Trial Court records disclose that the learned 1 st ACMM, Bengaluru was supplied the copies of the Police papers as required u/s 207 of Cr.P.C.
4. As per Section 209 of Cr.P.C., the case has been committed to the Court of Sessions, Bengaluru, as alleged offences are exclusively triable by the Court of 9 SC No.1011/2010 Sessions on 11.08.2010. On 27.08.2010 this case has been made over to FTC 9 for disposal in accordance with law. Accused No.1 to 4 were in judicial custody and accused No.5 to 7 were on bail at the time of committal of the case. After made-over of the case to the Court of Sessions, accused No.2 to 4 were enlarged on bail.
5. After hearing both sides, The Presiding Officer of the office of the FTC 9 has framed the charge on 18.08.2011 against the accused for the offences punishable u/s 342, 364(A), 302, 201, 120-B r/w Sec.34 of IPC and the case posted for trial. Subsequently, this case made over to this Court for disposal in accordance with law.
6. The prosecution has examined in all 65 witnesses as PW1 to 65. Prosecution got marked 111 documents as Ex.P1 to 111 and 74 material objects as MO1 to 74. Accused have got marked 4 documents as Ex.D1 to 4.
7. After closure of prosecution witnesses, the statement of accused has been recorded u/s 313 of Cr.P.C on 08.12.2017. All the incriminating evidence appearing against the accused has been read over 10 SC No.1011/2010 and explained but they have denied the same. The accused not adduced oral evidence on their behalf.
8. On appreciating the evidence on record, my predecessor in Office of this Court passed judgment on 31.08.2018 & convicted all the accused No.1 to 7.
9. Being aggrieved by the conviction judgment passed on 31.08.2018, accused No.1 to 7 independently preferred separate Criminal Appeal before the Hon'ble High Court of Karnataka in Crl.Apl.No.1628/2018 clubbed with 1659/2018, 1840/2018, 1937/2018, 1960/2018, 1976/2018, 61/2019. The Hon'ble High Court of Karnataka on 07.04.2021, set aside the conviction judgment passed by this Court and remanded the matter to this Court for re-consideration afresh from the stage of recording of the statement of accused u/s 313 of Cr.P.C., with a direction to dispose off the same within the time bound fixed by the Hon'ble High Court of Karnataka.
10. After remand, the presence of accused secured and re-admitted the case in SC No.1011/2010. After re-admitting the case, my predecessor in Office of this Court has recorded accused statement on 11 SC No.1011/2010 25.03.2022. Accused No.3 examined two witnesses on his behalf as DW1 & 2 and got marked Ex.D5 to 9.
11. The learned Public Prosecutor argued that after full-fledged trial and on appreciating the evidence on record, this Court has convicted accused Nos.1 to 7. Accused have challenged the finding recorded by this Court by preferring appeals before the Hon'ble High Court Karnataka. The appeals, are allowed by setting-aside the conviction judgment and matter remanded for re-consideration afresh from the stage of recording of statement of accused u/s 313 of Cr.P.C. After remanding the case, accused statement u/s 313 of Cr.P.C. recorded afresh. Accused No.3 got examined DW1 and 2 and got marked Ex.D1 to D9. The deceased Dr.Sharath Kumar is famous Pediatrician and running Clinic in the Sanjaynagar, accused Nos.1 to 7 for unlawful gain with criminal conspiracy abducted Dr.Sharath Kumar and demanded for ransom and after committing the murder throw the body within the jurisdiction of Amruturu Police Station Jurisdiction. The wife of the deceased lodged the complaint against unknown persons. During the course of investigation, the Investigating Agency found that the accused Nos.1 to 12 SC No.1011/2010 7 with criminal conspiracy kidnapped the Doctor, through the mobile phone of Dr.Sharath Kumar made call to the Shylendra Kumar/Jewelry shop owner and asked him to hand-over certain jewelry in his house to CW1, Dr. Sharath Kumar also informed his wife/complainant to hand-over the said ornaments to a person who visit his house. Later, the miscreants not satisfied with the said jewelry and again they insisted Dr. Sharath Kumar for more jewelry. In pursuance of the same Doctor called Shylendra Kumar to hand-over the some more ornaments to the Nageshwara Rao/Pharmacist. Accordingly, Pharmacist collected some more ornaments and accused have collected the same. Thereafter, they have taken Dr.Sharath Kumar in a vehicle within the jurisdiction of Kunigal Taluk and Dr.Sharath Kumar was strangulated with rope and after committing the murder thrown the dead body near the Kannaguni Bridge. The ornaments alleged to have given by Shylendra Kumar have been seized from accused Nos.1 to 7 on the basis of voluntary statement given by each of them by conducting the mahazar. The seizure mahazar witnesses who were present are supported the case of the prosecution.
13 SC No.1011/2010The accused have not come up with the explanation as to how they came in the possession the alleged ornaments. All the accused have given voluntary statements. Giving voluntary statement, in pursuance of said voluntary statement seizure of the ornaments and cash from the custody of accused Nos.1 to 7 and non-giving explanation for holding possession of alleged ornaments are sufficient to establish that the accused have committed the offence as alleged by the prosecution. Even though the Advocates for accused Nos.1 to 7 subjected to cross-examination of PW1/complainant, PW2/ Jewelry shop owner, PW23/Pharmacist, PW24/ Nurse, PW17/seizure mahazar witness to Ex.P15 to P19 and other seizure mahazar witnesses, nothing has been elicited to disbelieve their evidence. The Investigating Agency also collected the mobiles and CDR's in respect of the mobiles alleged to have been used by the accused Nos.1 to 7 while committing an offence. In the CDR's, the timings of phone call made by accused Nos.1 to 7, deceased, CW1, 18, 19 could be seen. CDR's are sufficient to prove the conspiracy made by accused Nos.1 to 7. PW1, 2, 23 and 24 have clearly identified concerned accused persons in the 14 SC No.1011/2010 presence of Taluka Executive Magistrate at the time of test identification parade. The evidence produced by the prosecution links the chain of circumstances which establishes the charges alleged against the accused Nos.1 to 7. It is not necessary that every conspirator must take part in each and every conspiratorial act. In this case, the complainant has initially filed Ex.P1/complaint and subsequently filed Ex.P2/complaint. Just because the Police have registered second FIR, does not make the case of the prosecution weak. By registering the second FIR, no prejudice has been caused to the accused and therefore, the entire investigation cannot be said to be defected. On the joint disclosure by more than one accused leading to discovery of same facts, then there is no good reason to eschew such evidence from regime of Section 27 and would be admissible against all such accused. Admissibility of the electronic records under Section 65(B)(4) of Evidence Act when objection regarding mode/method of prove of CDR's of mobile phones recovered from accused, raised at the time of marking of document as an exhibit i.e., at the trial stage and not later. In the instant case, the accused have not risen any objections to mark the 15 SC No.1011/2010 CDR's at the time of marking and therefore, CDR's produced by the prosecution are admissible in the evidence. Hence, the learned Public Prosecutor submits that the accused may be convicted as provided under law. In support of his contention he has placed reliance of the following citations and judgments:-
1. 1980 (Supp) SCC 679 (Syed Aleem alias Syed Baba Vs. State of Karnataka)
2. Crl.A. 1243/2018 (Delhi HC) (Gurdeep Singh Vs. State)
3. (2013) 14 SCC 434 (Rohtash Kumar Vs. State of Haryana.)
4. (2017) 7 SCC 177 (Charandas Swami Vs. State of Gujarath and Others.)
5. 2000 CRI.L.J.197 Kar H C (K.M. Ibrahim alias Bava and others etc., Vs. State of Karnataka)
6. (1987) 2 SCC 17 (State of Himachal Pradesh Vs. Krishan Lal Pardhan and Others)
7. AIR 2011 S C 604 (Chirra Shivraj of A.P.)
8. (2010) 9 SCC 567 (C.Muniapan and others Vs. State of Tamilnadu)
9. (2017) 3 SCC 760 (Kishore Bhadke Vs. State of Mharashtra)
10. (2017) 8 SCC 570 (Sonu alias Amar Vs. State of Haryana) 16 SC No.1011/2010
11. (2001)7 SCC 596 (Firozuddin Basheeruddin and others Vs. State of Kerala)
12. AIR 1989 SC 1966 (Durand Didier Vs. Chief Secretary, Union Territory of Goa)
13. 2012 CRI.L.J. 4610 (Central Bureau of Investigation, Hyderabad Vs. K.Narayana Rao)
14. AIR 2013 SC 651 (R.Shaji Vs. State of Kerala)
15. 1989 CRI.L.J. 1 (SC) (Kehar Singh and others Vs. The State (Delhi Admn.)
12. Accused No.1 to 3, 5 and 7 are represented by separate Senior Counsels. Accused No.4 and 6 is represented by single Senior Advocate. All the learned Senior Advocates submitted their arguments in length. From the arguments of the learned Senior Counsels emerges that as per the charge-sheet, charges are framed by this Court for the offence of criminal conspiracy against accused No.1 to 7, with common intention committing of offence of abduction and confining the Dr.Sharath Kumar in the house of accused No.1, committed murder of Dr.Sharath Kumar by strangulating his neck with the help of rope for non-payment ransom and after causing death in order to destroy the evidence of committing 17 SC No.1011/2010 murder thrown the dead body of Dr.Sharath Kumar near the drainage at Kannagune village of Kunigal Taluka and burn the personal articles of deceased near NH 48. In other words, the charges against accused No.1 to 7 framed for the offence u/s 120-B of IPC, against accused No.1 to 3 for the offence punishable u/s 302 and 201 r/w 34 of IPC and accused No.2 to 4 for the offences punishable u/s 364(a), 342 r/w Sec.34 of IPC.
13. Further it is argued that in order to prove the said allegations, the prosecution has examined in all 65 witnesses. Among the said witnesses, 19 witnesses i.e., PW8, 9, 11, 20, 21, 25, 27 to 34, 37, 38, 47, 52 and 54 have turned hostile and not supported the case of prosecution. Prosecution examined 16 Pancha mahazar witnesses, 2 complainants, a Medical Officer, 15 independent witnesses and other investigation team officials before the Court. In order to show that the accused No.1 was in financial distress and meeting of mind of accused No.1 to 7 to hatch the plan of committing criminal conspiracy prosecution has not produced any evidence. In fact, in this case there are two conspiracies. The 1st conspiracy is that accused No.1 18 SC No.1011/2010 conspires to abduct Dr.Sharath Kumar with accused No.2 to 4 and 2nd conspiracy is that accused No.1 to 3 felt that the jewels collected from the deceased Dr.Sharath Kumar is too insufficient and when Doctor was taking in a Maruthi Van towards Nelamangala, they hatched a plan and strangulated the neck of Dr.Sharath Kumar with the help of rope.
To prove both the conspiracies, absolutely no evidence produced by the prosecution. Further prosecution fails to prove the preparation of purchasing knives at Ranjith Optical situated at Majestic, accused No.1 purchased reliance phone with SIM in the name of CW76 by submitting fake documents, accused No.3 and 4 purchased rope from Pushpagiri Hardware shop, accused No.1 to 3 put the cooling paper to his car from his Star Car Accessories, Mattikere, accused No.1 to 4 meet each other on 08.04.2010 and conspired to commit the act on the subsequent date. Prosecution also fails to prove that accused No.1 by using the reliance mobile phone No.9844029393 asked for medical assistance, accused No.6 was the driving the Qualis Car, accused No.1 to 3 forced Dr.Sharath Kumar to call CW19/ Shailendra Kumar at 11.45 a.m. and 07.30 p.m. to 19 SC No.1011/2010 give jewels to CW1 and CW18, Dr.Sharath Kumar made call to landline of his house and talked to CW1, accused No.1 to 3 put monkey cap to Dr.Sharath Kumar and take him in Omni Van of accused No.2, in the evening Dr.Sharath Kumar again called to CW19/ Shailendra Kumar to hand-over the additional jewels to one Nageshwar Rao, accused No.5 collected the said jewels from CW19, accused No.1 to 3 in furtherance of criminal conspiracy developed at the spot in Omni Van, strangulated the deceased by using a rope. PW38/ owner of Ranjith Opticals in whose shop 3 knives alleged to have purchased by accused No.1 to 3, PW35/in whose name the Reliance SIM alleged to have purchased by accused No.1, PW28/owner of Pushpagiri Hardware in whose shop rope alleged to have purchased by accused No.3 and 4, PW33/worker of Star Car accessories in whose shop alleged to have put cooling paper by accused No.2, PW33 and 34/the workers of Gym, PW25/who alleged to witnessed accused No.1 to 3 taking Dr.Sharat Kumar by putting Monkey cap in Omni Van, PW27/worker of petrol bunk where accused No.1 to 3 alleged to have purchased petrol in bottle, PW32/employees of Ratnam International 20 SC No.1011/2010 Hotel where accused No.1 and 2 booked room under an anonymous name have turned hostile and not supported the case of prosecution. The Investigating Officer collected some of the CDR's detail of some phones, but the said CDR's have not supported the Certificate u/s 65B of the Evidence Act. Mere marking the said CDR's is not sufficient to prove the said CDR's. In the absence of the Certificate, the said documents are inadmissible in the eye of law. The Investigating Officer has not collected any documents with regard to the landline number and mobile number of the deceased and the mobiles alleged to have been seized from the accused No.1 to 4 and 6 to ascertain whether using the respective accused and those mobiles are used to commit a crime. No documents collected to show the tower location of the alleged mobiles seized in this case. The identification parade conducted by PW23 is not in accordance with the rules framed under the Police Manual. PW23/Taluk Executive Magistrate does not know the procedure to be conducted at the time of test identification parade. He got issued notice to CW1, 18 and 20 by giving the name of the accused persons to whom they should identify and the said TIP 21 SC No.1011/2010 conducted after lapse of 40 days. None of the prosecution witnesses have deposed the witnessing about the committing of murder of Dr.Sharath Kumar by accused No.1 to 3 and thrown the dead body of Dr.Sharath Kumar at Kannagunni village. Further the prosecution has also not proved accused No.1 to 3 destroyed the BP Operators, Stethoscope, Mobile etc., belongings of Dr.Sharath Kumar by putting fire. The prosecution also fails to prove the said items seized at the instance of accused No.1 to
3. Moreover, the said articles are seized at the open place which is accessible to all the public. Much focus made by the PP about recoveries of ornaments from the possession of accused No.1 to 7. CW115/Investigating Officer, received the intimation of DCP, Bengaluru, on 12.04.2010. After taking charge of this case, he arrested accused No.1 in his home at about 12.30 a.m on 13.04.2010, recorded the voluntary statement and seized ornaments and cash which alleged to have been kept in a unlocked Almera. Thereafter visited the house of woman/ accused No.7 in the mid night and arrested without giving any prior notice and without taking permission from the Magistrate as required u/s 46(4) 22 SC No.1011/2010 of Cr.P.C. According to the prosecution the brother of accused No.7 one Sharanachar pledged the ornaments in Muthoot Finance at the instance of accused No.1. If the Sharanachar has pledged the property involved in the crime, then he is also participated in commission of crime, but he has not been made as accused. On the contrary, he has cited in the charge-sheet as CW43, but he has not been examined. Same day IO visited the house of accused No.2, 4, 5 and 3, recorded their voluntary statements and seized the ornaments and cash from unlocked Almera's. Accused No.3 and 5 were on Ooty tour from 10.30 p.m. on 10.04.2010 to 07.30 a.m., on 13.04.2010. Both have been arrested soon after their arrival to Bengaluru from tour. Sharanachar, alleged to have been pledged the ornaments on 12.04.2010. Absolutely there is no evidence as to how and whom he collected and distributed the amount among the accused that too when accused No.3 and 5 were out of station during that period. Who has collected the ornaments and cash fallen to the share of accused No.3 and 5 and kept in their respective houses has not been proved by the prosecution. Ex.P21/mahazar alleged to have prepared by the IO is prior to 7.30 23 SC No.1011/2010 a.m. on 13.04.2010 before arrival of Accused No.5 i.e., 7.10 a.m. to 7.50 a.m. that too after recording voluntary statement of accused No.5. The mahazar alleged to have prepared by the Investigation Officer is prior to 7.30 a.m. on 13.04.2010. If really accused No.3 arrived to the Bangalore at about 7.30 a.m., on 13.04.2010, then how it could be possible for Investigation Officer to arrest the accused No.3, record the voluntary statement and conduct the mahazar at about 7.10 a.m. to 7.50 a.m.. The voluntary statement alleged to have been given by accused No.1, 7, 2, 4, 6, 5 and 3 as per Ex.P84 to 90 is in respect of the ornaments and cash and not in respect of any other articles. Though IO has recorded another set of voluntary statement of accused No.1 to 7 consisting about five page each, but said confession statements has not at all got marked in the evidence. Except seizure of ornaments and cash, other articles are not seized in pursuance of voluntary statement of accused No.1 to 7. Therefore, prosecution fails to prove Ex.P11/seizure mahazar of Omni Van, Ex.P37/ staying of accused No.1 and 2 at Rathnam International Hotel, Ex.P17/Sharanachar pledged the golden ornaments and received Rs.1,63,000/-, 24 SC No.1011/2010 Ex.P25/seizure of BP Operator, Ex.P26/seizure of Stethoscope, valet, phone etc, Ex.P92/conducting of mahazar of the place where the dead body of Sharath Kumar found, Ex.P28/seizure of gold chain at Shaneshwara Temple. The seizure of ornaments and cash from the custody of accused No.1, 7, 2 and 4 by conducting Ex.P15, 16, 18, 19/mahazars are also under suspicious circumstances. To all the said mahazars, PW17/Hari Rao Sindhya is the common mahazar witness who is not resident of the place of that locality as required u/s 100(4) of Cr.P.C and his evidence is in consistence with evidence of IO. Therefore, the evidence of PW17 itself is not sufficient to prove the said seizure mahazars. Non-examination of CW25/seizure mahazars witnesses and CW40/ Goldsmith is fatal to the case of prosecution. The above said mahazars are conducted nearly 3 days after the incident in unlocked iron almeras which was not in the exclusive possession of accused No.1, 7, 2 and 4 respectively. The entire investigation is conducted on the basis of the voluntary statement alleged to have given by the accused No.1 to 7. The recoveries on the basis of the voluntary statement cannot be the basis for conviction. The seizure 25 SC No.1011/2010 mahazars have not been proved by the prosecution as per law lead down by the Hon'ble Apex Court of India. There is no whisper by the seizure mahazar witnesses regarding the statement made by the accused persons which as lead to the alleged recovery. Even otherwise also the recovery of stolen property is not sufficient to draw the inference that the person in possession of the stolen property is the murderer. Suspicion cannot take place of proof. The joint disclosure statement and recoveries effected in pursuance of the same are not admissible. Ex.P11, Ex.P25 and P26 are also joint recoveries and no statement recorded from which accused such recoveries are made. The prosecution alleged to have seized the mobile from the accused persons but nothing has been produced to show that those mobiles belongs to the accused No.1 and others or the said mobile SIMS taken in the name of others and using the same by the accused persons as alleged. None of the prosecution witnesses deposed about participation of accused No.7. Nothing has been produced to by the prosecution to prove the involvement of accused No.7. None of the prosecution witnesses have stated accused No.7 has committed 26 SC No.1011/2010 any offence as alleged of the prosecution. To connect the chain of the circumstance, absolutely nothing has been produced by the prosecution. Looking from any angel the prosecution fails to prove the guilt of any of the accused No.1 to 7 beyond all reasonable doubts. Hence, they prayed acquit accused No.1 to 7.
14. Advocate for accused No.1 relied on the following judgments:-
1. 2022 Live Law (SC) 228 (Tulesh Kumar Sahu V/S State of Chhattisgarh
2. Crl.A 533/2012 (Karnataka High Court) (Manja @ Auto Manja and another v/s State by Konanur Police)
3. Jail Appeal No 116/2019 (Chatthoo Chero V/s State of U.P)
4. 2022 Live Law SC 596 (Shahaja @ Shahajan Ismail Mohd.Saikh V/S State of Maharashtra)
5. 1983 1 SCC 143 (Mohd.Abdul Hafeez v/s State of Andhra Pradesh)
6. 2003 CriLJ 2663 (Krishan Dass Alias Kisan Dass and ETC. V/s State of H.P)
7. 1999 CriLJ135 (Chander Pal v/s State Kishan Lal v/s State)
8. 1985 CriLJ1822 (Kanuru Yanadi Changaiah and others V/s State of Andhra Pradesh)
9. 1957 RLW 401 (Mohan v/s State)
10. 1958 CriLJ 821 (Nathu v/s State) 27 SC No.1011/2010
11. 1982 CriLJ 1656 (Oudh Ram and others v/s The State)
12. 19832 Crimes 497 (Amrik Singh v/s State of Punjab)
13. (1970) 2 SCC 105 (Thimma and Thimma Raju V/s State of Mysore)
14. 1983 2 SCC 251 (Kora Ghasi V/s State of Orissa)
15. 1954 CriLJ 335 (Trimbak V/S The State of Madhya Pradesh)
16. 2016 ILR (Karnataka) 3401 (Smt.Kanchan V/s Ravindranath)
17. 1984 4 SCC 116 (Sharad Biridhichand Sarda V/s State of Maharashtra)
18. 2022 Live Law SC 670 (Ram Niwas V/s State of Haryana)
19. Criminal Appeal (SC) 868-869/2004 (Ramesh Bhai & Anr. V/S State of Rajasthan)
20. 2022 Live law SC 1016 (Raju @ Rajesdra Prasad V/s State of Rajasthan)
15. Advocate for accused No.2 relied on the following judgments:-
1. 1997 Crl.L.J.2978 (S C) (Sahib Singh Vs State of Panjab)
2. 2018 Crl.L.J. (NOC) 712 (ORI) (Akahaya Das V. STtate of Orrisa)
3. AIR 2017 SC 4839, (Ganapat Singh V. State Of Madhya Pradesh) 28 SC No.1011/2010
4. 1991 Crl.L.J.1833 (SC)( Bollavaram Pedda Narsi and Others Vs State of AP)
5. (2011) 1 SCC (Criminal) 955 (Lohit Kaushal V.s State of Haryana)
6. Criminal Appeal No.2059/2013 (SC) (State of Rajasthan Vs. Mahesh Kumar @ Mahesh Dhaulpuria & Aother)
7. 2020 Crl.L.J.3241 (Kar H C) (Narasimhalu and another V. State through West Police Station, Raichur)
8. (2006) 12 SCC 306 (Vikramjit Singh Alias Vicky Vs. State of Punjab)
9. AIR 2015 SC 180 (Anvar P.V Vs P.K.Basheer and Ors.)
10. 1994 Crl.L.J.3372 (Kar HC) (M S Sheshappa Vs State of Karnataka)
11. 1999 Crl.L.J.135 (Delhi HC) (Chander Pal and etc., Vs The State)
12. AIR 1963 SC 822 (Radha Kishan Vs. State of UP)
13. 2016 (3) AKR 561 (B.Srinivas Byrappa v.D.K.Venkatarama Kondappa and another)
14. 2003 AIR SCW (Bharath v.State of M.P)
15. AIR 2003 SC 801 (State U.P v. Arun Kumar Gupta)
16. AIR 2002 SC 820 (Bhupan v.State of M.P)
17. AIR 2022 SC 2726 (Ravinder Singh alias Kaku v. State of Punjab)
18. AIR 1983 SC 367 (Mohd. Abdul Hafeez v. Andra Pradesh) 29 SC No.1011/2010
19. 1985 Crl.L.J.1822 (Andra Pradesh HC) (Kannuru Yanadi Changaiah and others v. Stage of A.P.,)
20. 2003 Crl.L.J.2302(SC) (Salaim Akthar @ Mota Vs State of UP)
16. Advocate for accused No.3 relied on the following judgments:-
1. AIR 1993 SC 2644 (State of A.P V/S Punati Ramulu & others)
2. 1995 ILR (KANT) 2139 (The State of Karnataka V/s Revappa)
3. AIR 2009 SC 963 (Baldev Singh V/S State of Haryana)
4. AIR 2008 SCW 5908 (B. Venkat Swamy V/S Vijay Nehru & Anr)
5. AIR 2004 SC 4408 (Rajkumar state of M.P)
6. AIR 2020 SC 4908 (Arjun Panditrao Kotkar V/s Kailas Kushanrao Gorantyal and others)
17. Advocate for accused No.4 and 6 relied on the following judgments:-
1. (2020)7 SCC 1 (Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others)
2. AIR 1947 PC 67 (Pulukuri Kottaya and others Vs. Emperor)
3. (2004) 10 SCC 657 (Anter Singh Vs. State of Rajasthan) 30 SC No.1011/2010
4. (2010)2 SCC 748 (Musher Khan Vs. State of M.P.,)
5. (2017) 14 SCC 516 (State of Uttar Pradesh and others Vs. Sunil and others)
6. (1997) 6 SCC 171 (Vijender Vs. State of Delhi)
7. (2002)5 SCC 323 (State of Orissa Vs. Dibakar Naik and others)
8. Crl.Apl.No.200020/2015 (Yankappa Vs. State of Karnataka)
9. (2008)3 SCC 210 (Sattatiya Vs. State of Maharashtra)
10. Crl.Apl.No.100059/2018 (Ningappa and others Vs. State of Karnataka)
11. (2005)11 SCC 600 (State (NCT of Delhi) Vs. Navjot Sandhu)
12. (1999)5 SCC 253 (State of Tamilnadu Vs. Nalini)
13. (2012)9 SCC 512 (CBI Vs. K. Narayana Rao)
14. (2003)2 SCC 202 (State of UP Vs. Arun Kumar Gupta)
15. Crl.Apl.No.184/2015 (Pradeep Chatri Vs. State of Karnataka)
16. Crl.Apl.No.200045/2014 (Marlingappa Vs. The State
17. Crl.Apl.No.100059/2018 (Ningappa Vs. The State of Karnataka)
18. Crl.Apl.No.611/2022 (Rahul Vs. The State of Delthi) 31 SC No.1011/2010
19. 2022 LiveLaw (SC) 955 (Gireesan Nair and others Vs. State of Kerala)
18. Advocate for accused No.5 relied on the following judgments:-
1. (2010) 7 SCC 697(Siddanki Ram Reddy V/s State of Andhra Pradesh)
2. 2021 SCC online Bom 3591 (Ramesh V/s State of Maharashtra)
3. Crl. Appeal No.64-65 of 2022 (Ramanand @ Nandlal Bharati Vs. State of Uttar Pradesh)
4. 2021 SCC Online SC 360 (Surendra Kumar and Aur Vs. State of UP)
5. Crl. Appeal No.242 of 2022 (Subramanya Vs. State of Karnataka)
6. Crl. Appeal No.1864-1865 of 2010 (Gireesan Nair and others Vs. State of Kerala)
19. Advocate for accused No.7 relied on the following judgments:-
1. 2022(4) Supreme (SC) 358 (Jafarudheen and Others V/s State of Kerala)
2. Crl.Ap. 2374/2014 (Satye Singh and another V/s State of Uttarakhand)
3. 2022(0) Supreme (SC)508 (Chandrapal V/s State of Chatiisgarh)
4. 2022 SCC Online SC 1090 (Rajbir Singh V/s State of Punjab)
5. 2021(0) Supreme (SC) 575 (Nagendra Sah V/s State of Bihar) 32 SC No.1011/2010
6. 2021(0) Supreme (SC) 801 (Praveen @ Sonu V/s State of Haryana)
7. 2022(0) Supreme (SC) 942 (Raju @ Rajendra Prasad V/s State of Rajasthan)
8. 2022(0) Supreme (SC) 851 (Ram Sharan Chaturvedi V/s State of Madhya Pradesh)
9. 2005 (11) SCC 600 (State (NCT of Delhi) V/s Navjot Sandhu)
10. 2012(9) SCC 257 (Subramanian Swamy V/s A Raja)
11. 2017 (8) SCC 791 (Rajiv Kimar V/s State of Uttar Pradesh and another)
20. Perused the materials placed on record.
21. Now the following points would arise for my consideration:-
1. Whether the prosecution proved beyond all reasonable doubts that, on 09.04.2010, accused No.1 to 7 agreed to do an illegal act of abduction of Dr. Sharath Kumar to make a wrongful gain from him and thereby committed an offence of criminal conspiracy punishable u/s 120-B of IPC?
2. Whether the prosecution further proved beyond all reasonable doubts that, on 09.04.2010, with common intention accused No.1 to 7, accused No.1 to 3 wrongfully confined Dr. Sharath Kumar in the house of accused No.1 and thereby 33 SC No.1011/2010 committed an offence punishable u/s 342 R/w Sec. 34 of IPC?
3. Whether the prosecution further proved beyond all the reasonable doubts that, on 09.04.2010, in further of common intention of accused No.1 to 7, accused No.4 and 6 on the instructions of accused No.1 abducted Dr. Sharath Kumar, demanded a ransom of Rs.50,00,000/- cash and jewelry and thereby committed an offence punishable u/s 364(A) R/w Sec. 34 of IPC?
4. Whether the prosecution further proved beyond all the reasonable doubts that, on 09.04.2010, in further of common intention of accused No.1 to 7, accused No.1 to 3 by using rope strangulated the neck of Dr. Sharath Kumar and caused his death thereby committed an offence punishable u/s 302 R/w Sec. 34 of IPC?
5. Whether the prosecution further proved beyond all the reasonable doubts that, on 09.04.2010, in further of common intention of accused No.1 to 7, accused No.1 to 3 threw the dead body of the deceased Dr. Sharath Kumar near the bridge of Kannaguni Village, Kunigal Taluk and thereafter, burnt the belongings of the deceased so as to destroy the evidence and thereby committed an offence punishable u/s 201 R/w Sec. 34 of IPC?
6. What Order?34 SC No.1011/2010
22. My findings on the aforesaid points are as follows:
Point No.1 to 5: In the negative, Point No.6 : As per the final order for the following:
:REASONS:
23. Point No.1 to 5:- As these points are inter linked with each other to avoid repetition both the points are taken together for discussion. Before going to consider the submissions made by the learned PP and Counsels appearing for accused No.1 to 7, I feel it just and proper to place on record the evidence which was produced before the Court.
24. PW1/Anjali Sharath is the complainant and the spot mahazar witness. She has deposed that deceased Dr. Sharath Kumar is her husband. On 09.04.2010 her husband went to the clinic at about 10.30 a.m.. At about 12.00 noon he called to the land line and informed that CW19/owner of Nirmal Jewels will come and give the ornaments and asked to hand over the same to a person who will come to house. After 10 minutes CW19 came and delivered 600 grams of gold ornaments. After 5-10 minutes a person aged about 25 years came collected said 35 SC No.1011/2010 ornaments. Subsequently when she was in the Jain Hospital, she called 2-3 times to her husband, at that time he informed her that he is far away from house. After 7.30 p.m., when she was returning from the hospital, received call from her husband but as there was disturbance she informed him that she will call later. After returning to home she made call but the phone of her husband was switched off. Next day she enquired CW20/Deenamma who is working as Nurse in their hospital, who informed that at about 11.30 a.m., somebody came and taken her husband. At about 11.00 a.m., on 10.04.2010 she lodged missing complaint of her husband Dr.Sharath Kumar. Evening hours she received the death message of her husband. On 11.04.2010 they completed the final funeral ceremonies and lodged detail Ex.P2/ complaint. Police visited the clinic and conducted Ex.P3/mahazar. On 25.04.2010 at about 4.00 p.m., Sanjaynagar Police called her, at that time she also taken CW20. The Asst. Commissioner of Police of CCB Police had shown half burnt purse, coin, janvara, broken chain, diamond ring and another ring. On 19.05.2010 the Thasildar called him to the Jail and made identification parade and she 36 SC No.1011/2010 identified that accused No.4/Shivaprathap who collected jewelry from the house.
25. PW2/Shylendra Kumar is the owner of the jewelry shop. He deposed that on 09.04.2010 at about 11.45 a.m., deceased called him and informed the requirement of the gold ornaments and as per the instructions of the deceased he handed over four sets of necklace and golden bangles to CW1. Again at about 7.30 p.m., deceased called and informed that chain and bracelet are not sent and he will ask one Nagendra to collect the said ornaments. As per the instructions of the deceased he handed over four chains & four bracelets to the said Nagendra. On 25.04.2010 the CCB Police called him to the CCB office, wherein, he identified the ornaments. In the cross-examination deposed that he has not taken the signature of CW1 and Nagendra after delivering the ornaments. He had not made any entry in the book of the shop after handing over of the ornaments either to CW1 or Nagendra. He has not maintained duplicate bills in the shop. Estimated bills confronted to him are marked as Ex.D3 & Ex.D4. The Police have not called to produce the bills of the jewels. Estimated bills will be prepared to know the value of 37 SC No.1011/2010 the ornaments and approval bills will be prepared finally in duplicate.
26. PW3/Guruprashanth is the relative of the deceased who identified the body of the deceased Dr. Sharath Kumar in Kunigal Government Hospital.
27. PW4/G.U.K.Holla is the father of the patient who used to take treatment from Dr.Sharath Kumar. He deposed about calling to Dr.Sharath Kumar & Doctor informed him to take Medicines.
28. PW5/Gangadharaiah is the seizure mahazar witness. He deposed that on 10.04.2010 he went to see the dead body fallen at Kannigunni village of Kunigal Taluk, Police by conducting the mahazar have collected the blood stained mud and sample mud.
29. PW6/Mallikarjunaiah, Police Constable of Amruthahalli Police Station has deposed that he received the articles of the dead body and delivered the same to the Police Inspector. The same has been received by the Inspector by conducting Ex.P5/ mahazar.
38 SC No.1011/201030. PW7/Chikkalingaiah is the Ex.P5/seizure mahazar witness. He deposed that on 10.04.2010 the Police have conducted Ex.P5/mahazar and seized the articles produced by the Police, found on the dead body.
31. PW8/Sheshadri Iyengar deposed that the accused No.1 was the tenant of his house. Accused No.1 was tenant of first floor between 2008 and June 2010. He has not deposed about the seizure of the articles at the instance of the accused No.1 in his presence and has turned hostile. The learned Public Prosecutor treated the witness as hostile and cross- examined. In the cross-examination he denied all the suggestions made to him and denied to have given the statement as per Ex.P6.
32. PW9/Vikram Singh, owner of the house and accused No.4 was his tenant. He deposed that Police have not seized any of the articles in his presence at the instance of accused No.4. The learned PP treated the witness as hostile and cross-examined. In the cross-examination he denied all the suggestions made to him and denied to have given the statement as per Ex.P7.
39 SC No.1011/201033. PW10/Jos Arul Butrue, seizure mahazar witness deposed about conducting of Ex.P8/seizure mahazar. As per the instructions of accused No.6 Police have seized the white color Qualis vehicle bearing registration No.KA-04/B-2568 in the presence of witnesses on 13.04.2010 at about 4.30 p.m., He identified the signature on Ex.P8.
34. PW11/Hanumantharayappa, owner of the house and accused No.7 was tenant in his house. He has not supported the case of the prosecution and turned hostile. The learned PP treated the witness as hostile and cross-examined. In the cross-examination he denied all the suggestion made to him and denied to have given statement as per Ex.P9.
35. PW12/Ravi Upadhya, Ex.P11/Omni vehicle & knife seizure mahazar witness deposed that in the month of April 2010 one Nyamagowda has shown the vehicle and asked him to act as panch witness to the mahazar. The accused No.1 & 2 took them to the Majestic KSRTC Parking and pointed out Maruthi Car bearing Registration No.KA-03/2729. Out of the two persons, one person taken the cover which was kept under the seat which consist knife and Police by conducting Ex.P11/mahazar seized the same. In the 40 SC No.1011/2010 cross-examination deposed that he does not know which article was taken by the Police from the vehicle. He has seen the panchanama but has not read it. The Police have not stated anything about writing panchanama and he came to know the contents of the panchanama only after writing the same.
36. PW13/Mallikarjuna Chanmala, lecturer of Veerandra Patil College deposed that during the year 2010 accused No.3 & 5 were studying BBM in Veerandra Patil College. On 10.04.2010 at about 10.30 p.m., they took the BBM students to Ooty and Coimbatore & returned to Bengaluru at 7.30 a.m. on 13.04.2010. After they returned to Bengaluru the CCB Police have taken the accused No.3 & 5 along with them.
37. PW14/Mohammed Anwar, complainant who lodged Ex.P12/complaint deposed that on 10.04.2010 when he had been to the Olayanakate, at that time the people were gathered and he saw male dead body under the bridge. In that connection he lodged Ex.P12/complaint. Thereafter the Police have conducted Ex.P4/mahazar of that spot.
41 SC No.1011/201038. PW15/Laxman, Ex.P13/Inquest mahazar witness deposed that the Circle Inspector of Kunigal has conducted Ex.P13/inquest mahazar of the dead body which was found near Olayanakate Bridge.
39. PW16/Thamanna deposed that Ex.P13/inquest mahazar was conducted near Olayanakate where the dead body was found in his presence.
40. PW17/Harirao Sindhiya, seizure mahazars witness of Ex.P15, 16, 18 and 19 deposed that on 13.04.2010 at about 12.30 a.m., CCB Police requested him to act as mahazar to the panchanama and served Ex.P14/notice on him. The Police have taken him near the house of the accused No.1 and said accused No.1 produced the gold ornaments, cash & mobile by taking from the almirah. Police by conducting Ex.P15/mahazar seized MO6, 7, 15, 18 to 21, 38 & 39. Thereafter accused No.1 taken them to the house of accused No.7 and she produced the necklace, bangles, Muthoot Finance receipt, currency notes and mobile by taking from Almera. Police by conducting Ex.P16/mahaar seized MO8, 10, 11, 17, 40 & 41. He saw Ex.P17/Muthoot Finance receipt. Then accused No.1 & 7 taken them to the house of the accused No.2 and he produced the bangles, 42 SC No.1011/2010 chain, currency notes, Nokia and Reliance mobile phones by taking from Almera. Police have seized MO12, 13, 42, 43, 44 by conducting Ex.P18/ mahazar. Thereafter accused No.1, 2 and 7 taken them to the house of accused No.4 and he produced Nokia Mobile Phone, Currency Notes, bangles and Chain. The Police have seized MO14, 15, 23, 45 & 46 by conducting Ex.P19/mahazar. In the cross- examination deposed that when they had gone to the house of the accused No.1 nobody was present in the house, but the door was opened. He cannot say the numbers of the currency notes, color of mobile phones and IMEI Numbers. The Police have not affixed the paper chit which bears his signature on MO39. He cannot say the specific weight of the seized ornaments. On that day he did not travel in the Police vehicle and not followed the Police vehicle. He cannot say which currency Notes were seized from the house of accused No.2. He cannot say how many notes of face value of Rs.500/- have been seized from the house of accused.
41. PW18/Shreeshail, Ex.P21/seizure mahazar witness deposed that Police asked him to act as a pancha and issued Ex.P20/notice. Police taken him 43 SC No.1011/2010 to the house of accused No.5, at that time the accused No.5 produced bracelet, two mobile phones and currency notes by taking from Almera. The Police by conducting the Ex.P21/mahazar seized MO16, 24, 47, 48, 49, 50. In the cross-examination has stated that in his presence police have not recorded the statement of family members of accused No.3. He does not know whether photograph was taken or videography has made.
42. PW19/Mahesh Kumar deposed that on 14.04.2010 he was called to CCB Office, at that time the accused No.1 to 3 were present. They take to the house of accused No.7 and accused No.1 asked Charan to give the Muthoot Finance receipt. Thereafter, accused taken them to Muthoot Finance. In the said finance the Manager Anandshetty produced one pair of bangles, chain and bracelet. The police by conducting Ex.P24/Mahazar seized the said articles. Next day accused No.1 to 3 have taken to Mahadevapura, accused No.3 produced B.P. apparatus. Police by conducting Ex.P25/Mahazar seized the said B.P. apparatus. Thereafter, accused No.1 to 3 have taken them to Gudemaranahalli Hand Post and produced mobile phone, mobile pouch, 44 SC No.1011/2010 purse, rope and other articles. Police by conducting Ex.P26/Mahazar seized the said articles and sealed in separate packets. In the cross-examination deposed that, he cannot read and right Kannada and his mother tongue is Telagu. He admits that, 1st time he deposed that accused No.3 produced the B.P. apparatus. Ex.P25/mahazar was not read over to him. The mahazar placed was about 60 -70 km away from his garage.
43. PW20/Krishnappa and PW21/Nagaraj, Ex.P28/ seizure mahazar witnesses and both have stated that, police have not conducted Ex.P28/seizure mahazar at Muneshwara Temple and seized the chain piece from Temple Hundi Box. PW20 and 21 are treated as hostile by learned PP and cross examined. In the cross-examination by learned PP, PW20 deposed that he had not seen accused No.3 and cannot identify him. He denied to have given statement as per Ex.P29. In the cross-examination by accused deposed that he does not know who wrote Ex.P28/mahazar and what has been written in that mahazar. PW21 in the cross-examination by learned PP has denied to have given statement as per Ex.P31. In the cross-examination by Advocate for accused, he 45 SC No.1011/2010 pleads ignorance that the weight and measurement mentioned in respect of MO5(a) and (b).
44. PW22/Diwakar, Ex.P3/spot (clinic) mahazar witness deposed that on 11.04.2010 at about 9 p.m Ex.P3/spot mahazar was conducted at the clinic of deceased Dr. Sharath Kumar in his presence.
45. PW23/Nageshwara Rao, Pharmacist working in Adarsh Medical Store situated by the side of the clinic of deceased deposed that on 09.04.2010 at about 11 a.m. Dr. Sharath Kumar informed that he is going to see the patient and thereafter, he did not return. At about 7.30 p.m. Dr.Sharath Kumar himself called and informed him to go to Nirmala Jewelers and collect the ornaments. Accordingly, he collected the ornaments box from Nirmala Jewelers and while giving the box, the owner of the said jewelers shop informed that there are 6 chains and 4 bracelets in the box but he has not seen the same. After collecting the said box, called to Dr. Sharath Kumar, at that time he informed to hand over the said box one Naveen. At about 7.45 p.m. said Naveen came to his shop and on the arrival of Naveen he called to Dr. Sharath Kumar and after confirmation handed over the ornaments box to Naveen. He identified one 46 SC No.1011/2010 Bhushan and said his name is Naveen.
Subsequently, came to know that, the death of Dr. Sharath Kumar. He identified the dead body of Dr. Sharath Kumar in Kunigal Government Hospital. After about 40 days he was asked to come to jail to identify the accused. Accordingly, he, CW1 and CW20 went to Parappana Agrahara Jail and in the jail he identified the Naveen. In connection with identification parade Tahasildar prepares Ex.P32/ Report. Tahasildar informed that the name of the person whom he identified is Bhooshith. In the cross- examination deposed that his signature was not taken in the jewelers shop. Between 09.04.2010 to 19.05.2010 police not called him and not shown anybody. The jewelers shop people have not given any receipt but gave normal slip. He does not know the subject matter of said slip, the weight of the said ornaments. He admits that, the issuance of Ex.D2/notice dated 10.05.2010.
46. PW24/Deenamma, Nurse working in the Clinic of Dr. Sharath Kumar deposed that on 09.04.2010 at about 10.a.m Dr. Sharath Kumar came to the clinic and when he was attending patients, at about 11.30 a.m. a man aged about 25 years came and taken Dr. 47 SC No.1011/2010 Sharath Kumar to his house to see the patient in white Qualis Car. Accused No.5 taken the Dr. and accused No.6 was the driver of the said car. The Doctor did not return to the clinic till night. Next day at about 10.00 a.m. when she went to attend clinic work came to know that somebody was murdered him near Kunigal. On 25.04.2010 she, CW1 and CW19 went to Sanjaynagar Police Station and police shown the Stethoscope and personal articles belonging to the Dr. Sharath Kumar. On 19.05.2010 she was asked to come to Parappana Agrahara Jail. Accordingly she, CW1 and CW19 went to the jail and she identified the person who visited the hospital to take the Doctor and the driver of the vehicle out of the 30 people shown to her. At this stage, the learned PP treated witness as hostile and cross examined. In the cross-examination deposed that, she has given statement to the effect that accused No.4 taken Dr. Sharath Kumar and in Parappana Agrahara she identified the accused No.4. In the cross-examination by Advocate for accused, deposed that she does not know the company of stethoscope used by the Doctor, she cannot say the design of the golden and weight of the chain. She has not studied. She cannot say the 48 SC No.1011/2010 facial approach and personal appearance or identity who took Doctor from the clinic on the date of incident. She has got short sight defect. She admits that on last occasion mistakenly she has identified the accused and she was not seen that accused earlier.
47. PW25/Ravi, Tailor deposed that he residing near the house of accused No.1 along with his family and is residing at first floor of Iyengar Building. He identified his signature on Ex.P32. Except identifying signature on Ex.P32, he does not know anything about this case. At this stage, the learned PP treated the witness as hostile and cross-examined. In the cross-examination he denied that on 09.04.2011 at about 4.00 p.m., accused No.2 and other two accused taken a person by wearing monkey cap in Omni Van. He denied to have given statement as per Ex.P33 and he denied other side.
48. PW26/Anand Shetty, Manager, of Muthoot Finance of R T Nagar Branch. He deposed that one Sharanachar borrowed the loan by pledging two golden bangles, a chain and a bracelet. On 14.04.2010 at about 10.30 to 11.30 a.m., CCB police visited and seized the said ornaments by conducting 49 SC No.1011/2010 Ex.P24/mahazar and identified the Ex.P17/receipt issued in favor of Sharanachar. In the cross- examination deposed that he cannot say without seeing the records what are all the ornaments pledged by Sharanachar. If any person comes to the shop to pledge the ornaments, normally they collect the Identity Card. Police have not collected any documents pertains to Sharanachar. There is no mention in Ex.P17 with regard to the design of the ornaments. He cannot say who wrote Ex.P24/ mahazar. He does not remember the contents of Ex.P24/mahazar. After seizer the Police have not sealed the said ornaments. The Police have issued the acknowledgment for having received the said ornaments. There is no mention about what are all documents collected from the Sharanachar.
49. PW27/Sridhar, Worker of Petrol Bunk deposed that he cannot say whether on 09.04.2004 at about 8.30 to 09.00 p.m., three accused persons have taken the petrol in a bottle. At this stage, the learned PP treated the witness as hostile and cross-examined. In the cross-examination, he denied to the suggestion made to him to the effect that he has stated that he 50 SC No.1011/2010 will identify the three persons who have visited the petrol Bunk to get the petrol.
50. PW28/Sudheer, running Hardware and paints Business in Sanjay Nagar deposed that the CCB Police brought the three persons to his shop. He does not remember that the said three purchased anything from his shop. He has no knowledge about the present case. At this stage, the learned PP treated the witness as hostile and cross-examined. In the cross-examination he pleads ignorance that on 08.04.2010 at about 7.30 p.m., accused No.3 and 4 have purchased 3-4 ropes from his shop. He denied to have given the statement as per Ex.P34.
51. PW29/Subba Reddy and PW30/Shivanna are Ex.P35/seizure mahazar witnesses. They identified their signature on Ex.P35. CCB Police called both the witnesses to their office and obtained signature on Ex.P35/mahazar. At this stage, the learned PP treated both the witnesses as hostile and cross- examined. In the cross-examination, both witnesses have denied that the police have seized Pulsar Motor Cycle No.KA-01/AC-7523 and the knife produced by the accused No.1 and denied to have given statement to the CCB police.
51 SC No.1011/201052. PW31/Sheik Irfan, Electrician and working in the Star Car Accessories deposed that about 1½ year back, CCB Police brought two persons to Star Car Accessories shop and questioned as to whether they got put cooling paper to their car. For that he answered that as there is lapse of one and half year he cannot identify the persons who got put the cooling papers to the car. At this stage, the learned PP treated the witness as hostile and cross- examined. In the cross-examination he denied all the suggestions made to him and denied to have given statement as per Ex.P36.
53. PW32/Ravikumar Reddy, Receptionist of Ratnam International Hotel situated at Sheshadripuram. About 1½ year back CCB Police have visited the hotel and questioned as to whether a person by name Mahesh Kumar obtained the room in their hotel. In that connection, he issued the Ex.P36/ Ledger extract. He cannot identify the said Mahesh Kumar. At this stage, the learned Public Prosecutor treated the witness as hostile and cross-examined. In the cross-examination he denied that accused No.1 in his own hand writing written the name of 52 SC No.1011/2010 Maheshkumar and mobile phone number and denied to have given the statement as per Ex.P38.
54. PW33/Ambarish, worker of Physic Gym and PW34/Sadanand, Manager of Physic Gym. PW33 deposed that accused No.2/Ashwath was his room- mate. He does not know anything about the deceased Sharath Kumar and about this case. PW34 deposed that accused No.2 residing in the second floor of the GYM building. He does not know who are all visiting the room of accused No.2. At this stage, the learned PP treated both PW33 and PW34 as hostile and cross-examined. In the cross-examination both witnesses have denied all the suggestions made to them and PW33 and denied to have given the statements as per Ex.P39 and 40. PW34 denied to given the statements as per Ex.P41 to 43.
55. PW35/Lokesh, System Administrator of Ramaiah College. CCB Police called him to the office and shown several documents. Among the said documents except DL no other documents pertains to him.
56. PW36/Shivakumar, Ex.P44/seizure mahazar witness. He deposed that on 25.04.2010 CCB Police 53 SC No.1011/2010 called him to Sanjay Nagar Police Station, Bengaluru, between 4 to 5 p.m., and Police have shown the half burnt stethoscope, BP operator, two silver ornaments, two coins of one rupee, watch, gold ring and silver ring. CW1 identified the said properties. In that connection police have drawn Ex.P44/mahazar in his presence.
57. PW37/Suresh, Room-Boy of Rathnam International Hotel situated at Sheshadrepuram. CCB Police visited the Hotel, at that time he had been to his village. At this stage, the learned PP treated the witness as hostile and cross-examined. In the cross- examination he denied all the suggestions made to him and denied to have given the statement as per Ex.P45.
58. PW38/Bhalavanth Singh, owner of the Ranjeeth Optical situated at Majestic. On 16.04.2010, CCB Police brought accused Nos.4 to 6 to his shop. 15 days prior to the visit of Police, the accused had purchased three knives from his shop. At this stage, the learned Public Prosecutor treated the witness as hostile and cross-examined. In the cross-examination he denied to have given the statement as per Ex.P46 and denied that accused Nos.1 to 4 visited the shop 54 SC No.1011/2010 and purchased three knifes and denied to have given the statement as per Ex.P47.
59. PW39/Usharani, Guest Supporter deposed that she had given a photo and address to his father Narayana Swamy to purchase the SIM card. There is no signature in the application shown by the CCB police. In the cross-examination by accused side deposed that she has not lodged any complaint in connection with taking mobile phone by somebody else in her name by furnishing the identity card.
60. PW40/Gurusiddappa, Assistant Executive Engineer deposed that he has prepared Ex.P48/ sketch in respect of the spot shown by Police near the bridge of Kannaguni Village.
61. PW41/Shivaswamy, Tahasildar/Taluk Executive Magistrate conducted TIP and prepared Ex.P32/ Report. In the cross-examination by accused side, he clearly admits that there is no mention about 30 persons facial appearance and other features of those who participated in the identification parade. At the time of test identification parade, he does not change the place of the person who participated in the Test Identification Parade. After completion of each parade 55 SC No.1011/2010 he does not recorded their individual statements. The witnesses have seen and identified 30 persons from left to right and not mentioned the age of those persons in the report. He pleads ignorance that as per rule there is prohibition to stand more than 10 persons, at the time of Test Identification Parade.
62. PW42/Subramani deposed that he had purchased the SIM card from Reliance and had given it to CW18/Nageshwar Rao.
63. PW43/Ravikumar, Doctor conducted Autopsy of the dead body of deceased Dr. Sharath Kumar on 10.04.2010 between 2.30 to 6.00 p.m. and issued Ex.P50/Postmortem Report. He has also issued Ex.P51/opinion of cause of death. In the said Report, death of deceased was due to Asphyxia due to pressure caused on neck and the death was 12 to 18 hours prior to conducting postmortem. In the cross- examination by accused side, admitted that he has not mentioned the width of the MO60/Rope.
64. PW44/Venkatarama, Head Constable at CCB, deposed about bringing the Postmortem Report from Kunigal Police Station and gave it to CCB Police along with Ex.P52/Report.
56 SC No.1011/201065. PW45/Mubarakh, Police Constable, Sanjayanagar Police Station deposed that accused No.1 used to call him often. In the cross-examination deposed that he has not produced any documents to show that the mobile phone stated in examination-in- chief belongs to him.
66. PW46/Shivaraj, Police Constable, Sanjaynagar Police Station had deposed about handing-over the case files of Crime No.101/2010 and Amruthur Police Station Crime No.46/2010 to CCB Police Station, Bengaluru.
67. PW47/Ravi D, owner of Qualis car deposed that his Qualis car bearing No.KA-04/B-2568 is looking- after by his brother. He does not know whether the said Car was given on rental basis and who was the driver to that car during April-2010. CCB Police called him to Police Station and there he came to know that the driver has misused the said vehicle while he took the said car for repair. At this stage, the learned PP treated the witness as hostile and cross- examined by him. In the cross-examination, he denied to have given the statement as per Ex.P53.
57 SC No.1011/201068. PW48/Rajesh.K, Nodal Officer of Idea Mobile Cellular Limited deposed that deceased was using mobile number 9844029393 and has produced the letter, application, driving license, CDR Report in respect of calls pertains to 09.04.2010. Subject to objection CDR is marked as Ex.P57. In the cross- examination by accused side deposed that he cannot say who submitted Ex.P55/application, no photograph is affixed on it, there is no mention in the CDR from which Tower calls are received, there is no documents to show that on 09.04.2010 the Tower was working. The contents of Ex.P55 are not written in his presence, there is correction made in the date column and no initials is made wherever the corrections are found.
69. PW49/Revannasiddappa, Police Constable, CCB Police deposed that on 23.04.2010, he collected 5 items from the CCB Police and handed over to Forensic Science Laboratory.
70. PW50/Mayanna an Agriculturist, deposed that about 2 years back, CCB Police enquired his mobile phone number, at that time he has stated last 4 digits of mobile phone No.9629. No photograph and 58 SC No.1011/2010 signature found on the Airtel Form and election card and he never used that SIM Card.
71. PW51/Shivaraj, Nodal Officer of Reliance has deposed about production of call records and CDR of the four mobile phone numbers in respect of the phone number described in Ex.P60. In the cross examination has deposed that he has not ascertained who are the owners of those phones and has not given information in that regard. There is no mention about the tower locations of both phones in Ex.P61, in case any person not used phone for long time that phone number will be allotted to some others.
72. PW52/Muniyellappa the father of accused No.3 deposed that his son was not using mobile phone and he never used to talk in mobile phone. At this stage, the learned Public Prosecutor treated the witness as hostile and cross-examined. In the cross- examination he denied to have given the statement as per Ex.P62.
73. PW53/Subhash, Nodal Officer of Airtel, deposed that he has issued CDR pertaining to seven mobiles as per Ex.P63. The said document marked subject to objections. Out of 7 mobile phones, he issued details 59 SC No.1011/2010 of 6 mobile phones and details of one mobile were not available. In the cross-examination by accused side deposed that there is no mention of two towers in the said letter. He cannot say the details of the phone who used the said mobile while making call.
74. PW54/Latha the mother of accused No.4 deposed that her son accused No.4 was not using mobile and no mobile phone is in her name. At this stage, the learned PP treated the witness as hostile and cross-examined. In the cross-examination she denied to have given the statement as per Ex.P64.
75. PW55/Nagaraj, Police Inspector, Sanjayanagar Police Station deposed that he received Ex.P2/ complaint from CW1. On the basis of the complaint registered Ex.P65/FIR, conducted Ex.P3/Mahazar, recorded the statement of witnesses and handed-over the case file to ACP of CCB for further investigation. In the cross-examination admits that there is no mention in the complaint that which article was taken away. Several houses and shops are situated surrounding the house of deceased. Pancha witnesses Diwakara is the resident of Malleshwaram and the house of said witness is situated about 5 to 6 kms., away from the spot.
60 SC No.1011/201076. PW56/Chandrashekar, ASI, Amruthur Police Station deposed that on 10.04.2010 received Ex.P12/ complaint through PC No.701 submitted by Mohammed Anwar of Kannaguni Village. On the basis of the said complaint registered Ex.P66/FIR.
77. PW57/Manoj, Ex.P74/Mahazar witness, deposed that CCB Police have conducted said mahazar at the time of releasing jewels in favor of Shylendra Kumar.
78. PW58/Shekar B.K., CPI of Kunigal Circle deposed that on 10.04.2010 at about 11.30 a.m. he received the massage from the PSI about lying of unidentified body near the Kannaguni Village. Immediately, he proceeded the spot and intimated about lying of un-identified body to all the Police Station of the State with facial features, conducted Ex.P4/mahazar and collected the blood mixed earth and sample earth, conducted Ex.P.13/Inquest Mahazar, recorded statements of witnesses, send the dead body for postmortem to the Kanigal Government Hospital, by the time of conducting postmortem, the relatives of the dead body came and identified that the dead body is of Dr. Sharath Kumar, Mallikarjun, 61 SC No.1011/2010 Police Constable, brought the clothe handed-over by the Medical Officer found on the dead body and the said cloth seized by conducting Ex.P5/mahazar. On 12.04.2010 with the permission of the Court transferred the case file to the Sanjaynagar Police Station.
79. PW59/Mukesh, Ex.P75 Mahazar witness deposed that CCB Police called him to Police Station and by conducting Ex.P75/mahazar released of Toyota Qualis Car as per the order of the Court.
80. PW60/Shashidhar, PSI, Sanjayanagar Police Station deposed that on 10.04.2010, CW1 lodged a missing complaint as per Ex.P1. On the basis of the said complaint registered Ex.P79/FIR.
81. PW61/Malathesh, Police Inspector, CCB Police Station deposed that on 13.04.2010, received credible information that accused is within the jurisdiction of Sanjaynagar Police Station. CW115 taken him and other Police Officials to the house of accused No.1, at about 12.00 to 12.15 a.m., arrested accused No.1 and seized the ornaments, cash and other objects from said accused. Thereafter accused No.1 taken them to the house of accused No.7 and WPSI 62 SC No.1011/2010 arrested accused No.7 and by conducting mahazar seized the ornaments, pledged receipt and cash. Thereafter, accused No.1 taken to the house of accused No.2, CW115 arrested the accused No.2 and seized the ornaments and other articles from his custody. Then accused No.1 taken them to the house of accused No.6 and seized the Qualis vehicle which was used for the commission of offence. As per the information of accused No.1 and 2, arrested accused No.3 near K.S.R.T.C Bus Stand and seized the golden ornaments and cash from his house and seized the ornaments and cash from the house of accused No.4/Shivaprathap. On 18.04.2010 he was working as CCB Nodal Officer, as per the request of the Investigating Officer, he supplied the CDR's as per Exs.P54 to 57, 60 to 63. Exs.P81 to P83 are marked subject to objection of Advocate for accused. In the cross-examination admits that he has not furnished any document to show that he was working as Nodal Officer.
82. PW62/Jayasimha, PC, Amruthur Police Station deposed that on 10.04.2010, PSI/Shivareddy taken him the Kannaguni Village and shown the lying male dead body near the bridge. In connection with that 63 SC No.1011/2010 one Mohammed Anwar filed a complaint before the PSI. It was handed-over to him and asked him to take the complaint to the Police Station. Accordingly, at about 11.30 p.m., he submitted Ex.P12/complaint to the Amruthur Police Station.
83. PW63/Shivareddy, PSI, Amruthur Police Station deposed that on receipt of the information of lying dead body near the Kannaguni Village, immediately he proceeded to the said place and in that regard one Mohammed Anvar has submitted Ex.P12/complaint to him. The said complaint was forwarded to the Police Station through the PC/Jayasimha.
84. PW64/Murthy, Vodafone Nodal Officer in his evidence identified the signature of Johnson Tom on Ex.P81. Said Johnson Tom left the job and does not know at present where Johnson Tom is residing.
85. PW65/B.N.Nyamegowda, Investigating Officer deposed that as per order of Joint Commissioner of Police dated 12.04.2010, he secured the file for further investigation At about 11.00 p.m. on the basis of the credible information received about availability of some accused in their house. At about 12.30 a.m. along with other Police staff, went to the 64 SC No.1011/2010 house of accused No.1 situated at Sanjayanagar, secured the presence of pancha witness by issuing Ex.P14/notice, arrested accused No.1, on interrogation gave the Ex.P84/voluntary statement, seized 4 gold chains, two gold necklaces, a bracelet, mobile and cash. On 13.04.2010 by conducting Ex.P15/mahazar seized the said ornaments and cash after examination of ornaments by CW40/ Shivarudra. Thereafter, accused No.1 taken them to the house of accused No.7, on interrogation accused No.7 gave Ex.P85/voluntary statement stating that she will produce the ornaments and cash fallen to her share. WPSI Puttamma arrested accused No.7 and said accused No.7 produced a pair of bangles, necklace, cash, Nokia Mobile phone and a receipt issued by the Muthoot Finance and same are seized by conducting Ex.P16/mahazar. Thereafter, the accused Nos.1 and 7 taken them to the house of accused No.2, at that time said accused No.1 was in the house, arrested said accused No.2, on interrogation gave the Ex.P86/voluntary statement stating that he will produce the ornaments and cash fallen to his share, seized a pair of bangles, a golden chain, two mobile phones and cash by conducting 65 SC No.1011/2010 Ex.P18/Mahazar seized the said ornaments and cash. Thereafter, the accused Nos.1, 7 and 2 taken them to the house of accused No.4, at that time said accused No.4 was in the house, arrested said accused No.4, on interrogation gave the Ex.P87/voluntary statement stating that he will produce the ornaments and cash fallen to his share, seized a pair of bangles, a golden chain, Nokia mobile phone and cash produced by him by conducting Ex.P19/Mahazar seized the said ornaments and cash. Thereafter, the accused Nos.1, 2, 4 and 7 have taken them to the house of accused No.6, at that time said accused No.6 was in the house, arrested said accused No.6, on interrogation gave the Ex.P88/ voluntary statement stating that he will produce the Car, seized the Qualis Car produced by him by conducting Ex.P8/Mahazar. On the same day, accused Nos.1 and 2 taken him to the Bengaluru K.S.R.T.C. parking place and shown Maruti Vehicle. By securing the presence of Panchas they seized Maruthi Car No.KA-03/C-2729. On search of said vehicle found knife under the Driver seat and by conducting Ex.P11/mahazar. Received information that accused Nos.3 and 5 will arrive and therefore, 66 SC No.1011/2010 took accused No.1 to Sadashivanagar Bus Stand, accused No.3 and 5 returned at about 6.50 a.m. from tour, after identifying accused No.3 and 5 taken them to custody. Accused No.5 and accused No.3 gave voluntary statements as per Ex.P89 and Ex.P90 respectively. As per the voluntary statements, by conducting Ex.P21 and 22/mahazars seized the ornaments, cash and mobile phones alleged to have produced by them. After coming to the Police Station, he submitted the PF's to the Court by mentioning in details with regard to the property seized from the custody of accused Nos.1 to 7, recorded the statement of witnesses. On 13.04.2010 produced accused No.1 to 7 before the Court and taken accused No.1 to 6 into the Police custody. Same day accused No.1 to 3 gave voluntary statements stating that they will show the place where the belongings of the deceased were thrown. On the basis of the voluntary statements given by the accused No.1, secured the presence of CW41 and 42 by giving notice and accused No.1 taken them to the house of CW43/brother of accused No.7, in turn, said CW43 taken them to Muthoot Finance, R.T.Nagar Branch and in the said Finance shown Ex.P17/receipt. On 67 SC No.1011/2010 the basis of the said receipt, CW44 produced and golden bracelet, golden chain and two golden bangles, by conducting Ex.P24/mahazar, seized the said ornaments. On 15.04.2010, on the basis of the voluntary statement given by accused No.3, secured the presence of CW47 and 48 by issuing the notice, accused No.3 took them to Shani Mahathma Temple, Sanjayanagara, and by opening the Hundi of that temple seized two pieces of golden chain which is pointed out by accused No.3 and by conducting Ex.P28/mahazar. Same day, accused No.1 to 3 taken them to the open space situated near the Mahadevapura village and near the shrubs, shown the BP machine, by conducting Ex.P25/mahazar, seized the said BP machine. Thereafter, accused No.1 to 3 taken them to the Hand-Post situated near the Gudemaranahalli and shown the partly burnt stethoscope, mobile phone, phone pouch, purse, coins silver ornaments, rope pieces, by conducting Ex.P26/mahazar, seized the said objects. Thereafter, accused No.1 to 3 taken them to the spot, where the dead body was thrown by them. In the presence of witnesses conducted Ex.P22/mahazar and recorded the statement of witnesses. On 16.04.2010 accused 68 SC No.1011/2010 No.1 taken them to his house and shown the motorcycle No.KA-01/EC-7539 parked near his house and taken out the knife kept in the said motorcycle. By conducting Ex.P35/mahazar seized the said objects. Thereafter, accused took them to the shop, where the knife was purchased, recorded the statement of the said shop owner. Further accused taken them to Rathnam International Hotel, where they were stayed, in that Hotel collected the copy of Ex.P37/Hotel Register, collected the 'B' extract of Qualis and Maruthi Omni vehicles as per Ex.P94 and 95 respectively, obtained the permission from the Court to take opinion from the Doctor in respect of the properties seized and reported under PF No.27/2010 and received the opinion of the Doctor as per Ex.P51. He also deposed about recording statement and further statement of some witnesses and collecting documents filed charge-sheet against accused No.1 to 7.
This is all the oral evidence placed on record by the prosecution to prove the guilt of the accused. Prosecution in support of its case has also got marked Ex.P1 to 111 and MO1 to 74.
69 SC No.1011/201086. I have gone through the judgments relied on by the learned PP and Counsels for accused No.1 to 7 and kept in mind the views taken in the said judgments while appreciating the evidence and coming to the final conclusion. I respectfully agree with the views taken in the said judgments.
87. In this case prosecution is required to prove beyond all reasonable doubt that on prior to 09.04.2010, accused No.1 to 7 conspires, made preparation and accused No.1 to 3 purchased knives, accused No.1 purchased Reliance Phone in the name of CW76, accused No.3 and 4 purchased rope, accused No.1 to 4 put the cooling paper to car at 'Star Car Accessories', accused No.1 to 4 meet at Physic Gym, Sanjaynagar and conspire to commit the act on the next day, 09.04.2010 morning accused No.1 called Dr.Sharat Kumar through Reliance mobile seeking medical treatment, at the instructions of accused No.1, accused No.4 and 6 taken Dr. Sharath Kumar from his clinic for wrongful gain, wrongfully confined him in the house of accused No.1, demanded a ransom of Rs.50,00,000/- cash and jewelry, in pursuance of same Dr. Sharath Kumar forced to call to CW19/Shylendrakumar to give jewels 70 SC No.1011/2010 to CW1, accordingly said CW19 handed over jewels to CW1, as per the instructions of accused No.1 to 3, accused No.4 collected said jewels from CW1, accused No.1 to 3 by putting monkey cap on Dr. Sharath Kumar taken him in Maruti Van of accused No.2 towards Kunigal, while so proceeding Dr. Sharath Kumar forced to call to CW19/ Shylendrakumar demanding additional jewels and asked to handover to CW18/Nageshwarrao, as per the instructions of accused No.1 to 3, accused No.5 collected said jewels from CW18, accused No.1 to 3 strangulated the neck of Dr. Sharath Kumar by using rope and caused his death. In order to destroy the evidence threw the dead body near the bridge of Kannaguni Village, Kunigal Taluk. Thereafter, purchased the petrol at Siddeshwar Service Station, burn the belongings of the deceased within the limits of Mahadevepura and Guddemaranhalli by the side of NH 48, accused No.3 puts a part of the gold chain in Shani Mahatma Temple hundi. On 12.04.2010 CW43/Sharnachar taken loan of Rs.1,63,000/- by pledging some jewels at Muthoot Finance and gives to accused No.1 and the said amount got distributed among accused No.1 to 5 and 7.
71 SC No.1011/201088. Now let me consider whether the evidence placed on record by the prosecution is sufficient to prove the guilt of the accused beyond all reasonable doubt. No direct evidence available in this case and the entire case of the prosecution rests upon the circumstantial evidence. In order to bring home the guilt of the accused under circumstantial evidence, the prosecution has to link all the circumstances with one another and the Court will be in a position to see the chain of events and if the chain of events and important links have been established by the prosecution, then the case of the prosecution is said to have been proved. It is also well settled that the material circumstances if they point out to the guilt of the accused, then under circumstances also the Court can convict the accused for the alleged offences. The only thing which the Court has to see is that the said circumstances lead to one and the only conclusion towards the guilt of the accused without any second view and there should not be any other explanation and other hypothesis than the guilt of the accused. Where on the available evidence two possibilities are available or open, one goes in favor of prosecution and another goes in favor of accused, the 72 SC No.1011/2010 accused is undoubtedly entitled to the benefit of doubt.
89. It is necessary to note the settled principles of law laid down by the Hon'ble Apex Court with regard to the criminal conspiracy. The principal ingredient of the offence of criminal conspiracy u/s 120-B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the accused. It is well settled that to prove the charge of conspiracy, within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence, but at the same time in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences u/s 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional 73 SC No.1011/2010 statement of the accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused. In case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
90. The Hon'ble Apex Court in a judgment relied on by the learned PP reported in 2012 Cri.LJ.4610 discussed about the ingredients of Criminal Conspiracy. It is worth to extract para No.20 of the judgment to consider about the ingredients of Criminal Conspiracy. For the sake of convenience said para No.20 is extracted ad reproduced here under:-
20. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience 74 SC No.1011/2010 that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
91. According to the view taken by Hon'ble Apex Court the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. The direct evidence to prove conspiracy is rarely available. The circumstances proved before and after the occurrences have to be considered to decide about the complicity of the accused persons. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an 75 SC No.1011/2010 agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent and acceptable evidence.
92. Since the case is based on circumstantial evidence, it is the duty of the prosecution to prove the genesis of the hypothesis by linking each and every chain of circumstances, without any delink. The following are the genesis of hypotheses for proving the circumstantial evidence in this case:-
a. Death of the deceased is homicidal; b. Motive;
c. Evidence of the prosecution witnesses/last seen theory of the deceased in the company of the accused; and d. Arrest and recovery.
93. First of all, the prosecution is required to prove that the death of Dr.Sharath Kumar is unnatural/ homicidal death.
76 SC No.1011/201094. At outset it is necessary to note that an unidentified dead body found within the jurisdiction of Amruthuru Police Station, Kunigal Taluka. CW3/ Mohammed Anwar submitted Ex.P12/ complaint about lying of unidentified dead body near the Kannaguni Village Bridge on 10.04.2010. The inquest mahazar has been conducted in respect of the dead body as per Ex.P13 in the presence of CW4 to 8. CW4 is examined as PW15. The prosecution also examined PW43/Dr.Ravikumar who conducted the post mortem in respect of the dead body of Dr.Sharath Kumar on 10.04.2010. As per the evidence given by the Medical Officer, it is very much clear that the death of Dr.Sharat Kumar has been caused due to "pressure over neck structure secondary to ligature strangulation".
95. The accused have not seriously disputed that the death of the deceased Dr.Sharath Kumar is unnatural death. In view of the injuries found over both the dead bodies, the evidence given by the Medical Officer who conducted the Postmortem and opinion given by them in respect of cause of death, it could be said that the death of Dr.Sharath Kumar is unnatural/homicidal death. Having regard to the 77 SC No.1011/2010 materials on record, in the considered opinion of this Court, the prosecution has proved beyond all reasonable doubt that the death of Dr.Sharath Kumar is homicidal death and not natural death.
96. According to the prosecution the motive to commit the offence is accused No.1 was in financial distress and therefore, he hatched the sketch along with accused No.2 to 7 to abduct Dr.Sharath Kumar committed his murder for ransom. In order to prove the said allegation prosecution has not produced any iota or evidence. None of the witnesses have spoken much less the independent witness in this regard before the Court. In other words absolutely nothing has been produced to prove the motive and the said allegation remains intact without any proof.
97. Now let me see the evidence of the prosecution witnesses/last seen theory of the deceased in the company of the accused, arrest and recovery is proved. In order to bring home the guilt of accused No.1 to 7, the prosecution has cited 115 witnesses in the charge-sheet and has examined 65 witnesses as PW1 to 65. As noted supra in this case, no direct witnesses are available to speak with regard to the 78 SC No.1011/2010 case of the prosecution and the entire case of the prosecution rests upon the circumstantial witnesses.
98. Much arguments focused by both the side with regard to the mobiles alleged to have been used by deceased, accused No.1 to 4, 6, PW2 and 23, conversation took place among accused No.1 to 7 and about the admissibility of CDR of mobiles produced by the prosecution, about test identification parade conducted by the Taluka Executive Magistrate, mismatching of ornaments alleged to have given by PW2, PW1 and PW23 and delay in filing complaint and inconsistencies in filing complaints by CW1. Therefore, first let me record my findings on these disputed aspects.
Discussion with regards to the mobiles:-
According to the prosecution, the mobile number of the deceased was 9844029393 and the landline number of the house of the deceased was 2341500. To substantiate the said fact, the prosecution examined PW48/Rajesh.K. In the cross- examination, PW48 deposed that no photograph is affixed on the application, CDR details does not disclose from which tower the calls are received, no documents produced to show that on 09.04.2010, 79 SC No.1011/2010 the said tower was in working condition, no documents produced in respect of the landline phone number. Absolutely nothing has been produced by the prosecution to prove that the mobile number of the deceased was 9844029393 and the landline number of the house of the deceased was 2341500.
99. According to the prosecution, accused No.1 by giving forged documents of CW83 obtained Mobile No.9740325653. In order to prove the said fact prosecution has examined CW83 as PW39. She has not supported the case of prosecution and nothing has been produced to prove that accused No.1 by giving forged documents of CW83 obtained Mobile No.9740325653. Further according to the prosecution, accused No.1 was also using another Mobile No.9019586749. To substantiate the said fact, absolutely nothing has been produced by the prosecution. In the absence of any admissible evidence, in the opinion of this Court, the prosecution has failed to prove that accused No.1 was using the Mobile No.9740325653 and 9019586749.
100. As per the prosecution case, accused No.2 was using the Mobile No.9343831800. In the charge- sheet, CW81 is shown as the witness to speak with 80 SC No.1011/2010 regard to using of said mobile by accused No.2. In order to prove the said fact, the prosecution fails to secure the presence of CW81. Absolutely, nothing has been produced by the prosecution to prove that accused No.2 was using the said mobile number.
101. As per the prosecution, accused No.3 was using the Mobile No.9632524891. In order to prove the said allegation prosecution has cited CW77 and 80. Prosecution has not examined CW80. However, CW77 examined as PW52. In his evidence PW52 has not supported the case of prosecution and turned hostile. Even after treating him hostile, nothing has been elicited from his mouth that the accused No.3 was using the said mobile phone. He denied to have given the statement as per Ex.P62. If we exclude the evidence of PW52, absolutely there is no material on record to prove that accused No.3 was using the mobile referred above.
102. As per the prosecution, accused No.4 was using the Mobile No.8095469686. In order to prove the said fact, the prosecution has cited CW78 and examined CW78 as PW54. PW54 in his evidence has not supported the case of prosecution and turned hostile. Even after treating him hostile, nothing has 81 SC No.1011/2010 been elicited from his mouth that the accused No.4 was using the said mobile. He denied to have given the statement as per Ex.P64. If we exclude the evidence of PW54, absolutely there is no material on record to prove that accused No.4 was using the mobile referred above.
103. According to the prosecution, accused No.6 was using the Mobile No.9686754461. In order to prove the said fact, the prosecution has cited CW79 and examined said witness as PW50. He has not supported the case of prosecution and not whispered that the accused No.6 was using the said mobile. If we exclude the evidence of PW50, absolutely there is no material on record to prove that accused No.6 was using the mobile referred above.
104. It has come in the evidence of PW65/IO during the course of investigation he seized two mobile phones from accused No.5 and one mobile phone from accused No.7. But no investigation appears have been done by the IO in respect of those three mobile phones.
105. According to the prosecution, PW2/Shailendra Kumar was using the Mobile No.9880095460 and 82 SC No.1011/2010 PW23/Nageshwara Rao was using the Mobile No.9343713288. In order to prove the said fact, absolutely nothing has been produced by the prosecution that PW2 and PW23 were using the alleged phone numbers.
106. On appreciation of oral and documentary evidence placed on record except the oral evidence of PW65/IO, absolutely nothing has been produced to prove the allegations made in the charge sheet about using of mobile SIM's by deceased, accused No.1, 2, 3, 4, 6, PW2 and PW23. Even no admissible evidence produced to show those phone numbers stand in whose name and also not collected any materials in that regard. PW65/IO appears to have filed the charge sheet without collecting any supporting documents in that regard. In the absence of any admissible and acceptable evidence, in the opinion of this Court the prosecution utterly failed to prove that accused No.1, 2, 3, 4, 6, PW2 and PW23 using of mobile phones as alleged in the charge sheet. The allegations of prosecution to that effect remain intact without any proof.
Discussion with regards to the CDR:-
83 SC No.1011/2010The prosecution has produced Ex.P57, 61 and 83/CDR's to prove the conversation took place among accused No.1 to 7 and with other witnesses. Before considering the CDR's it is necessary to note the law laid down by the larger bench of Hon'ble Apex Court in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal. In view of divergent views taken by the two Division Benches of Hon'ble Apex Court referred to larger bench in dealing with interpretation of Sec.65-B of Evidence Act. The Hon'ble Apex Court having taking into consideration the relevant provisions, various judgments and the reference is answered by stating that:
(a) Anvar P.V. (supra), as clarified by us herein-
above, is the law declared by this Court on Sec- tion 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judg- ment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original docu- ment itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned de-
84 SC No.1011/2010vice, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "com-
puter network" and it becomes impossible to physically bring such system or network to the Court, then the only means of pro- viding information contained in such elec- tronic record can be in accordance with Section 65B(1), together with the requi- site certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,..." With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revis- ited.
(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
(d) Appropriate rules and directions should be framed in exercise of the Information Technol- ogy Act, by exercising powers such as in Section 67C, and also framing suitable rules for the re- tention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preser- vation of the meta data to avoid corruption. Like- wise, appropriate rules for preservation, retrieval 85 SC No.1011/2010 and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice's Conference in April, 2016.
It is evident from the law laid down by the Hon'ble Apex Court that the certificate required u/s 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record.
107. Keeping in mind the law laid down by the Hon'ble Apex Court let me see the present facts of the case. The prosecution has produced the CDR's of phone numbers alleged to have been used by the deceased, PW23 and accused persons at Ex.P57, 61 and 83. Admittedly, the said CDR's are print out taken from the computer and said CDR's are not supported by Sec.65B(4) Certificate. Mere marking of CDR which are the print outs taken from the Computer, in the absence of Sec.65B(4) Certificate are not admissible. Marking of the document is a ministerial act. The contents of the documents have to be proved in accordance with the procedure prescribed under the law. To admit the CDR's, Certificate u/s 65B(4) is a condition precedent. As noted supra, in the present case, no 65B(4) Certificate is filed by the prosecution. In the absence 86 SC No.1011/2010 of 65B(4) Certificate, the placed on record are inadmissible in the eye of law. Having regards to the facts and circumstances of the case, in the opinion of this Court the Ex.P57, 61 and 83/CDR's cannot be looked into at all. Even no tower location particulars are collected. If the said CDR's excluded from consideration absolutely there is no material on record to prove the conversation took place among accused No.1 to 7. The said allegation remains intact without any proof.
Discussion with regards to the Test Identification Pa- rade(TIP):-
In the instant case, it is the contention of the learned Counsels for the accused that conducting of TIP by the prosecution was based on the evidence of PWs.1, 20, 23 and 41. The said evidence is not con- vincing and it is not in accordance with law and the same is not reliable. Identification parades are not primarily meant for the Court. They are meant for in- vestigation purposes. The object of conducting a TIP is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them at the time of commission of crime and to satisfy the investigating agency that the sus-87 SC No.1011/2010
pect is the real person whom the witnesses had seen in connection with the alleged offences. The alleged TIP was conducted after lapse of about 40 days from the date of incident and the said TIP was not con- ducted in accordance with the procedure prescribed in the Police Manuel. In support of their arguments they placed reliance on the judgments of Hon'ble High Court of Karnataka rendered in Cri.Appeal No.184/2015 (Pradeep Chathri @ Pradeepa vs State Of Karnataka) and judgment reported in 2020 CR- L.L.J. 324.
108. The procedure to be followed at the time conducting the TIP has been discussed in both the judgments. Para No.15 of the judgment of Cri.Appeal No.184/2015 (Pradeep Chathri @ Pradeepa vs State Of Karnataka) is relevant and therefore the said paragraph is extracted and reproduced here:
15. It is well established principle of law that whenever TIP is to be conducted, the accused person should be made to stand in a row along with other accused persons or some other persons who are having similar fea-
tures. After following such procedure PW34 has to get the dresses of the accused persons changed by pointing out that whom the wit- ness has identified them in the TIP and again after getting the dresses of the ac- cused and other witnesses changed for the 88 SC No.1011/2010 second time, she has to change the position of the accused and other persons and make a request to identify the accused. The said proceedings are to be recorded and there- after in the similar way again for the third time also, similar method has to be adopted to identify the accused by changing the po- sition of the accused. At that time also if again the witness identifies the accused persons, then under such circumstances, it can safely be held that the witness has seen earlier the said accused persons and identi- fied them at the time of test identification parade. Under such circumstances, the Court can rely upon such evidence.
109. In 2020 CRL.L.J. 3241 (K.Narasimhalu and another Vs The State) the Hon'ble High Court of Karnataka discussed about various procedure and precautions to be taken as per the principles of law laid down by the Hon'ble Apex Court. For the sake of convenience the said relevant paragraph is extracted and reproduced here under:-
"Procedure and precautions - The value of T.I. parade depends on the effectiveness of precautions taken to prevent the opportunity of seeing the suspects and to prevent the investigating authority to adopt unfair means -
(a) T.I. parade should be preferably held by a Magistrate;
(b) It should be held in the jail compound;
(c) Suspects should be mixed up with as many undertrial prisoners/outsiders as possible;
(d) U.T .prisoners/outsiders and suspects should be similarly dressed and of similar social status, age and religion;89 SC No.1011/2010
(e) They should resemble in features;
(f) After each identification by the identifying witness the order of suspects and U.T. prisoners/outsiders in the row should be changed;
(g) Other identifying witnesses should be kept in a place beyond the sight and hearing of the witness identifying;
(h) After identification the witness should be kept in a place beyond the sight and hearing of other identifying witnesses;
(i) No police personnel should remain present in the identification ground;
(j) The Statement of witnesses relating to the suspect made in course of identification should be recorded by the Magistrate; and
(k) The Magistrate will also record of the objection of the suspect.
110. As per the views taken by the Hon'ble High Court of Karnataka in above referred judgment there is clear mention whenever TIP is to be conducted the accused persons should be made stand in row along with other accused persons or some other persons who are having similar futures. After following such procedure dresses of accused persons and other witnesses should be get changed. The statement of the witnesses relating to suspect made in course of identification should be recorded by the Magistrate. After each of the identification by the identifying witness the order of suspects and U.T. prisoners/ outsiders in the row should be changed. It is 90 SC No.1011/2010 necessary to keep in mind none of the witnesses described the facial and body figure or any other particulars which made them keep in memory. In this case all the witnesses who participated in the TIP have seen the alleged accused persons only for few seconds
111. PW41/Shivswamy/Taluka Executive Magistrate has conducted TIP of PW1/Anjali, PW23/Nageshwara Rao, PW24/ Dinamma and PW25/Ravi and submitted report as per Ex.P32. On perusal of the evidence of PW41/Taluka Executive Magistrate it is noticed that he has not followed the procedure and no precautions taken as required to be taken at the time of conducting the Test Identification Parade. As against the procedure the Taluka Executive Magistrate made to stand 30 persons in a row including 6 accused of this case and completed the Identification Parade at only in one stretch. In a report there is no mention that all the persons have been similarly dressed and of similar social status and age, they resemble in futures after each of the identification by the identifying witness the order of suspects and U.T. prisoners/outsiders in a row changed. There is no mention about conducting the 91 SC No.1011/2010 TIP as per law of the land laid down in the judgments of Hon'ble High Court of Karnataka and Hon'ble Supreme Court. From Ex.P32/report it could be seen that the TIP was conducted by Taluka Executive Magistrate only once. In fact, three time similar method has to be adopted to identify the accused by changing the position of the accused and such excise has to be made to each of the witnesses. In the instant case absolutely there is no such excise made by the Taluk Executive Magistrate. The Taluka Executive Magistrate has taken the statement of each of the witnesses relating to the suspect made in the course of identification.
112. As noted supra in his presence the TIP of 4 witnesses have been conducted after lapse of 40 days. PW1/Anjali is the wife of the deceased Dr. Sharath Kumar. As per the prosecution case, she had seen accused No.4/Shiva Prathap at the time of collecting the jewels from her house but in the statement recorded by the TEM she has stated that the accused No.4 visited her house to collect cash and jewels. As per prosecution case, PW23/ Nageshwara Rao had seen one Naveen that he collects jewels from him. But, in the TIP he identified 92 SC No.1011/2010 Bhushith who said to have collected the jewels from him. As per the prosecution case PW24/Dinamma had seen accused No.4 and 6 when they came to the Adarsha Clinic to take Dr. Sharath Kumar in a car. Accused No.6 was sitting in the driver seat and accused No.4 came inside the clinic and taken the Dr. Sharath Kumar to the car. Surprisingly in the statement recorded by the Taluk Executive Magistrate she had identified 5 persons i.e., accused No.2 to 6. There was no occasion for PW24 to see accused No.2, 3 and 5 and as per the statement given by her, she had seen all the said persons while they are taking the deceased from the clinic. This evidence is totally inconsistent with the case of the prosecution. As far as PW25/Ravi concerned, as per the prosecution case he had seen accused No.1 to 3. In the examination-in-chief before this Court he has not at all stated about the identification of accused No.2 and 3. If we consider the evidence given by the Taluk Executive Magistrate and the witnesses, their evidence makes it very clear that the Taluk Executive Magistrate has not at all followed the procedure and has not taken precaution as enumerated in the judgment rendered by the Hon'ble High Court of 93 SC No.1011/2010 Karnataka. Having regards to the facts and circumstance of the case. The arguments addressed by the learned Counsel for the accused that the very fact of conducting TIP itself the suspicious one has some force.
113. The Hon'ble Apex Court has observed that conducting of TIP is important both to the prosecution as well as to the accused for proper administration of justice without unreasonable delay after arrest of the accused. If, however, circumstances are beyond control and there is some delay, that itself is not fatal to the case of the prosecution provided reasons should be given as to why there was a delay.
114. The Hon'ble Apex Court in a judgment relied on by accused No.5 reported in (2010) 7 SCC 697 has held that "when eyewitnesses have little time to see accused, substantive evidence should be sufficiently corroborated by a TIP held soon after occurrence and any delay in holding TIP may be fetal to the prosecution case.
115. In this case accused are arrested on 13.04.2010 and identification was conducted after laps of about 40 days. Absolutely no explanation is 94 SC No.1011/2010 offered by the IO as to why there was a delay in conducting the TIP. For the discussion made about the prosecution has utterly failed to prove the TIP was conducted as required under law. The delay in holding TIP is also fetal to the prosecution case.
Discussion with regards to the Mismatching of Ornaments alleged to have given by PW2, PW1 and PW23:-
The learned Counsel for accused No.2 submits the chart about mismatching about the ornaments alleged to have given to accused persons in the charge sheet and the evidence given by the CW19/PW2. Looking the charge sheet and the evidence placed on record it is necessary to note that CW19/PW2 jewelry shop owner as per the instructions of Dr.Sharath Kumar delivered the golden ornaments twice. Firstly, he delivered golden ornaments to CW1/PW1 at her house and secondly, delivered golden ornaments to CW18/PW23 in his shop.
116. In the light of said submission perused the records and noticed that CW19/PW2 alone is having knowledge as to the quantum and description of the jewels handed-over to CW1 and CW18. Know let me 95 SC No.1011/2010 first consider the evidence placed on record in respect of the quantum and description of the jewels handed-
over to CW1/PW1. According to the prosecution case, as per the instructions of Dr.Sharath Kumar, PW2 went to the house of CW1 and handed-over 5 pairs golden bangles, 4 golden chains and 4 golden necklaces. During to the course of evidence, PW2 has given go bye to the prosecution case and deposed contrary to the prosecution case. In his examination in chief, he has stated that as per the instructions of Dr.Sharath Kumar, he went to the house of CW1 and handed-over 4 pairs of golden bangles and 4 golden necklaces. He has not whispered about handing over of 4 golden chains and a pair of bangles. There is paucity of evidence in respect of 1 pair of bangles and 4 golden chains. It is also necessary to note that for handing over of the said jewels, he has not entered in the books after handing over of jewels to CW1, nor he has taken any acknowledgment for having received the jewels from CW1. Further he does not know whether the bills are produced before the tax authorities. PW1 has deposed in her evidence that she has not seen the golden ornaments alleged to have been handed over to her by PW2.
96 SC No.1011/2010117. Know let me consider the evidence placed on record in respect of the quantum and description of the jewels handed-over by CW19/PW2 to CW18/ PW23. According to the prosecution case, as per the instructions of Dr.Sharath Kumar, at about 07.15 p.m., he handed-over 4 golden bracelets and 6 golden chains to one Nagendra in his shop. During the course of evidence PW2 has given go bye to the prosecution case and deposed contrary to the prosecution case. In his examination in chief, he has stated that as per the instructions of Dr.Sharath Kumar, he handed-over 4 golden chains and 4 golden bracelets. He has not whispered about handing over of another 2 golden chains to CW18. There is paucity of evidence in respect of 2 golden chains. It is also necessary to note that for handing over of the said jewels, he has not entered in the books of shop after handing over of jewels to CW18, nor he has taken any acknowledgment for having received the jewels from CW18. Further he does not know whether the bills are produced before the tax authorities. PW23 has deposed in his evidence that he has not seen the golden ornaments alleged to have been handed over to him by PW2.
97 SC No.1011/2010118. The IO has recovered the golden ornaments from accused No.1 to 5 and 7 by conducting mahazars. As per the evidence on record IO recovered 4 necklaces, 5 pair of bangles, 8 chains and 3 bracelets. There is serious inconsistency in the prosecution case with regard to the quantum and description of the jewels handed-over by CW19 to CW1 and CW18. Even though as per the evidence of PW2, he handed over 4 pairs of bangles the IO recovered 5 pairs of bangles. Whereas, as per the evidence of PW2, he handed over 10 chains and 4 bracelets the IO recovered only 8 chains and 3 bracelets. Absolutely there is no investigation with regard to the 2 chains and a bracelet. Admittedly, PW2 has not entered the particulars of delivering of items either to PW1 or PW23 in the books or taken any acknowledgment either from PW1 or from PW23 for having received the alleged ornaments. There is no base for the handing over of ornaments from PW2 to PW1 and PW23. IO has not made any investigation in this regard to ascertain the truthfulness of the statement alleged to have given by PW22. Even there is corroborative and consistent evidence with regards to the weight of the alleged ornaments. On 98 SC No.1011/2010 appreciation of evidence on record as rightly submitted by the learned Counsel for accused No.2 the prosecution fails to produce the admissible evidence in respect of the quantum, description and weight of the jewels handed-over by CW19 to CW1 and 18 and recovery of the ornaments from accused No.1 to 5 and 7. If really the PW2 handed over the ornaments as alleged by the prosecution, he would have mentioned in the books maintained in the shop and would have taken acknowledgment from the PW1 and PW23. It is highly impossible to remember to any human being about the ornaments given to any one with all details viz., description, quantum and weight. There is no base for the evidence of PW2 for handing over of quantum, description and weight of the jewels to CW1 and 18. In view of the above discussion the prosecution utterly failed to prove that as per the instructions of Dr.Sharath Kumar, PW2 handed-over 5 pairs golden bangles, 4 golden chains and 4 golden necklaces to CW1 and handed-over 4 golden bracelets and 6 golden chains to one Nagendra with the weight of said ornaments.
Discussion with regards to the delay in filing the complainant and inconsistences in the complaints filed by CW1:-
99 SC No.1011/2010Before considering the arguments on this point it is necessary to note the view taken by Hon'ble Apex Court about filing of complaint promptly in a decision relied on by learned Counsel for accused No.4 and 6 in judgment reported in 1972 (3) SCC 393. Relevant portion could be seen in para No.12 of the judgment. For the sake of convenience the relevant portion is extracted and reproduced here:-
"12. ........First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused: The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the first in- formation report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information 100 SC No.1011/2010 report should be satisfactorily explained........"
119. In this case, in all three complaints were filed. First complaint was filed by CW3/Mohammed Anwar as per Ex.P12 on 10.04.2010 at about 11.00 a.m. before Amruthuru Police Station about noticing of unknown dead body of male person near the bridge situated at Kannaguni village. The second complaint was filed by CW1/Smt.Anjali Sharath on 10.04.2010 at about 12.00 p.m., before the Sanjayanagara Police Station as per Ex.P1 about missing of Dr.Sharath Kumar since 11.30 a.m. on 09.04.2010 and the last and third complaint was filed by CW1/Smt.Anjali Sharath on 11.04.2010 at about 08.45 p.m. before the Sanjayanagara Police Station as per Ex.P2 about committing the murder of her husband for money.
120. During the course of argument, the learned Senior Counsels for accused No.1 to 7 have vehemently argued that the wife of deceased CW1/Anjali Sharath lodged a complaint on 10.04.2010 at about 12.15 p.m. and in that complaint she has not at all whispered about the phone conversation took-place between her and the deceased, handing over of jewels by CW19 to her, in 101 SC No.1011/2010 turn she handed-over the said jewels to accused No.4 and the phone conversation took-place in the evening and the said fact is narrated only in the second complaint filed by Anjali Sharath as per Ex.P2.
121. In the light of the said arguments, perused the Ex.P1/complaint filed on 10.04.2010 at 12.15 p.m., and Ex.P2/complaint filed on 11.04.2010 at 08.45 p.m.. According to Ex.P1/complaint, the husband of complainant was missing from 11.30 a.m. on 09.04.2010 and the said complaint was filed on 10.04.2010 at about 12.15 p.m. In that complaint, as rightly pointed out by the learned Counsels for the accused, absolutely nothing has been mentioned with regard to the series of incidents alleged to have been taken-place on 09.04.2010 i.e., about telephone conversation took-place between the deceased and the complainant, as per the instructions of deceased, CW19 delivered the jewels box, in turn she handed- over the said jewels box to accused No.4. If really the incident has happened about receiving golden ornaments from and handing over the golden ornaments to accused No.4, obviously the complainant would have mentioned all the said facts in the Ex.P1/complaint filed on 10.04.2010 at 12.15 102 SC No.1011/2010 p.m. The alleged facts narrated only in the Ex.P2/ complaint. Absolutely no explanation offered as to why those facts missed at the time of filing of Ex.P1/ complaint. It is also necessary to note that nothing has been whispered in her evidence as to why the said fact has not been disclosed in Ex.P1/ complaint. No doubt, the non-mentioning the said fact in Ex.P1 /complaint alone itself is not fatal to the case of prosecution. However, having regards to the facts and circumstances, it is one of the strong suspicious circumstances which create doubt in the mind of the Court regarding the veracity of the evidence of PW1 and infirmity in that evidence would render it unsafe to believe the prosecution story. The Ex.P2/complaint filed only after finding the dead body of Dr.Sharat Kumar. Even in that complaint no specific names of culprits or facial or body feature of the person who collected the ornaments box from her is mentioned. At least during the course of trial, PW1 would have stated as to why there is no mention about the incidents alleged to have taken place on 09.04.2010 about handing over of jewels in Ex.P1/complaint, which was filed on 10.04.2010. The said fact is fatal to the case of prosecution.
103 SC No.1011/2010Sec.34 - Common intention:-
Sec.34 deals with common intention. As per the view taken by the Division Bench of Hon'ble High Court of Karnataka in Crl.Apl.No.1059/2018, whenever prosecution invokes Sec.34 of IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must therefore, be proved that;
1. There was common intention on the part of several persons to commit a particular crime
2. The crime was actually committed by them in furtherance of that common intention
122. The essence of liability u/s 34 of IPC thus can be summarized as simultaneous conscious mind of persons participating in the criminal action to bring about a particular result by a pre-arranged plan and acting in concert pursuant to it. In the said judgment, the Hon'ble High Court of Karnataka extracted the relevant portion of judgment rendered by the Hon'ble Apex Court. The word 'act' used in Sec.34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention physically present at the scene of occurrence and be shown not to have 104 SC No.1011/2010 dissuaded themselves from the intended criminal act for which they shared the common intention.
Culpability u/s 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention.
123. Keeping in mind, the view taken by the Hon'ble Apex Court as well as the Hon'ble High Court of Karnataka, if we perused the case on hand, the prosecution fails to prove any of the ingredients of Sec.34 of IPC. The prosecution has not demonstrated that there was common intention on the part of accused No.1 to 7 to commit a particular crime and crime was actually committed by them in furtherance of such common intention. It is not the case of prosecution that accused No.1 to 7 were physically present at the time of committing the murder of Dr.Sharath Kumar. Looking from any angle, the prosecution has utterly fails to prove the common intention of accused No.1 to 7 as pleaded in the charge-sheet. The said allegation remains intact without any proof.
105 SC No.1011/2010Non-following of mandate of Sec.46(4) of Cr.P.C.:-
The learned Counsels for accused No.7 argued that PW65/Investigating Officer being the rank of Asst. Commissioner of Police does not have knowledge of basic procedure to be followed at the time of arresting the women and has arrested the woman accused No.7 after sun set and before sun rise against the mandate of Sec.46(4) of Cr.P.C.. In light of the said submissions, it is necessary to go through Sec.46 of Cr.P.C. For the sake of convenience the Sec.46 of Cr.P.C is extracted and reproduced here under:-
46. Arrest how made:
(1) . . . . . .
(2) . . . . . .
(3) . . . . . .
{(4)Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.} Sec.46 of the Cr.P.C. prescribes the procedure for how an arrest has to be made. Sub 106 SC No.1011/2010 Sec.(4) was added vide Amendment Act 2005 with effect from 23.06.2006. As per Sub Sec.(4) except in exceptional circumstances, no woman shall be arrested after sunset and before sunrise. Even in such exceptional circumstances police officer shall obtain the prior permission of the jurisdictional Judicial Magistrate.
124. According the Counsels for accused the arrest made by the PW65/IO is in gross violation of sub- section (4) of Sec.46 of the Cr.P.C. and bad in law.
125. Keeping in mind the above provision, now let me consider the submission made by the Advocates for the accused. In the present case, accused No.7 is a woman. PW65 being the Investigating Officer who is a rank of Assistant Commissioner of Police went to the house of accused No.7 around 01.00 a.m. on 13.04.2010 and arrested accused No.7 with the assistance of Woman PSI. PW65 before arresting accused No.7 in the mid-night has not obtained prior permission of the jurisdictional Judicial Magistrate. It is significant to note that during the cross of cross examination PW65 has stated that the prior permission of the jurisdictional Judicial Magistrate is not at all necessary. The manner in which the PW65 107 SC No.1011/2010 answered the said question clearly indicates even he has no basic knowledge of the procedure to be followed at the time of arresting the woman after sun set and before sunrise.
126. On perusal of order sheet of the Committal Court dated 14.04.2010, the learned 1st ACMM though noted that accused No.7/Sandya produced on 14.10.2010 at 12.30 a.m. by PW65 but the learned Magistrate not enquired anything about arresting the woman accused after sunset by violating the section 46(4) of Cr.P.C.. In that connection the learned Committal Magistrate ought to have taken action against the IO for non-following the mandatory requirement of Sec.46(4) of Cr.P.C. It is unfortunate to note that PW65/IO being senior Police Official has no knowledge about the Sec.46(4) of Cr.P.C. Even the learned Committal Magistrate also fails to note the non-following the mandatory requirement of Sec.46(4) of Cr.P.C. by PW65/ IO. Under the facts and circumstances of the case, in the opinion of this Court the action of the PW65 in arresting the accused No.7 in the mid-night at about 01.00 a.m. on 13.04.2010 in crime No.101 of 2010 registered is in violation and utter disregard to Sec.46(4) of Cr.P.C.
108 SC No.1011/2010and therefore, the PW65 is responsible for the flagrant violation of the provision of Section 46(4) of Cr.P.C..
127. PW65 took the charge of the case at about 6.30 to 7.00 p.m. on 12.04.2010. On the basis of the credible information he went to the house of accused No.1 and recorded the voluntary statement alleged to have been given by accused No.1 and on the basis of the alleged voluntary statement, the entire case is built-up. In other words, the entire case of the prosecution is initially based on the voluntary statement alleged to have been given by accused No.1 and subsequently the voluntary statements alleged to have been given by accused No.2 to 7. As per Sec.27 of the Evidence Act, voluntary statements of accused are admissible only to the extent of discovery of the fact and any voluntary statement about the commission of offence is inadmissible.
128. Now let me consider about the mahazars conducted by the PW65/Investigating Officer with regard to the recoveries of articles at the instance of accused No.1 to 7.
129. In this case according to the prosecution in all Twenty One mahazars are conducted. 1st 109 SC No.1011/2010 Ex.P4/Dead body found spot mahazar was conducted at Kannigunni Village Bridge on 10.04.2010 between 10.50 a.m. to 12.20 p.m., 2nd Ex.P13/Inquest Mahazar of unknown dead body was conducted at Kannigunni Village Bridge where the dead body was found on 10.04.2010 between 12.30 to 02.30 p.m., 3rd Ex.P5/Seizure Mahazar was conducted in the CPI Office of Kunigal, at the time of production of cloth found on the dead body by CW15 on 10.04.2010 between 06.00 to 06.45 p.m., 4th Ex.P3/Spot Mahazar was conducted at Adarsh Clinic at Sanjaya Nagar on 11.04.2010 between 09.15 p.m. to 10.15 p.m., 5th Ex.P15/Seizure Mahazar was conducted at the first floor of the House No.58, 3rd Cross, RMS Colony, on 13.04.2010 between 12.35 a.m. to 01.25 a.m., 6th Ex.P16/Seizure Mahazar was conducted in front of the House No.207, 3 rd Cross, 3rd Main, KEB Layout, Sanjayanagara, on 13.04.2010 between 01.45 a.m to 02.15 a.m., 7th Ex.P18/Seizure Mahazar was conducted at 2nd Floor, House No.126, 80 feet Main Road, Sanjayanagar, on 13.04.2010 between 02.30 a.m. to 03.00 a.m., 8th Ex.P19/Seizure Mahazar was conducted near the House No.4/60, 7 th Main, 4th 110 SC No.1011/2010 Block, Nandini Layout on 13.04.2010 between 03.45 a.m. to 04.15 a.m., 9th Ex.P21/Seizure Mahazar was conducted near the House No.2, 6 th Main Road, Vasanth Nagar on 13.04.2010 between 07.10 a.m. to 07.50 a.m., 10th Ex.P22/Seizure Mahazar was conducted near the House No.166, 3rd Cross, Floor Mill Road, Ashwath Nagar on 13.04.2010 between 08.10 a.m. to 08.45 a.m., 11th Ex.P8/Seizure mahazar of Qualis Car in front of the House No.182, situated at 4th Cross, 3rd Main, Deepanjalinagara on 13.04.2010 between 05.15 p.m. to 05.45 p.m., 12th Ex.P11/Seizure Mahazar of Maruthi Omni Van and the knife situated in front of KSRTC Bus Stand Swathi Delux Car Parking on 13.04.2010 between 06.05 to 06.30, 13th Ex.P24/Seizure Mahazar was conducted in the Muthoot Finance Limited Office situated at Dinnur Main Raoad on 14.04.2010 between 10.30 a.m. to 11.30 a.m., 14th Ex.P25/Seizure Mahazar was conducted by the side of NH 48 within the limits of Mahadevapur on 15.04.2010 between 01.30 p.m. to 02.00 p.m., 15th Ex.P26/Seizure Mahazar was conducted by the side of NH 48 near the Gudemaranhalli Hand Post on 15.04.2010 between 03.00 p.m. to 04.00 p.m., 16th 111 SC No.1011/2010 Ex.P28/Seizure Mahazar was conducted in the Sri.Sri.Sri. Chakrasahitha Shaneshwar Temple, situated at 3rd Cross Bhoopsandra Main Road, Bhairappa Extension on 15.04.2010 between 10.30 to 11.20 o'clock, 17th Ex.P2/ Dead body found spot mahazar was conducted at Kannigunni Village Bridge on 15.04.2010 between 05.30 p.m. to 06.45 p.m., 18th Ex.P35/Seizure mahazar of Motor Cycle near the House No.58, situated at 3 rd Cross, RMS Colony on 16.04.2010 between 10.00 a.m. to 10.45 a.m., 19th Ex.P74/Mahazar was conducted in the CCB Bangalore Office while releasing the ornaments to CW19/Shylendrakumar on 25.05.2010 between 03.10 to 04.20 p.m., 20th Ex.P44/Mahazar was conducted in Sanjaynagar P S, on 25.04.2010 between 04.00 to 05.45 p.m. and 21st Ex.P75/Mahazar was conducted in the CCB Bangalore Office while releasing the Qualis Car to CW87/Ravi on 05.06.2010 between 05.00 to 05.00 p.m.
130. Advocates for accused have not seriously disputed 1st Ex.P4/Dead body found spot mahazar, 2nd Ex.P13/Inquest Mahazar conducted at Kannigunni Village Bridge where the dead body was 112 SC No.1011/2010 found, 3rd Ex.P5/Seizure Mahazar of cloth found on the dead body, 4th Ex.P3/Spot Mahazar of Adarsh Clinic at Sanjaya Nagar, 19th Ex.P74/Mahazar conducted while releasing the ornaments to CW19/ Shylendrakumar and 21st Ex.P75/Mahazar conducted while releasing the Qualis Car to CW87/Ravi.
131. However, all the accused have seriously disputed the rest of the mahazars. Therefore, the entire burden is on the prosecution to prove the all the mahazars except Ex.P3 to 5, Ex.P73 and Ex.P74. Now let me see as to whether the prosecution is able to prove all the mahazars except Ex.P3 to 5, Ex.P74 and Ex.P75.
5th to 10th Ex.P15, 16, 18, 19, 21 and 22/Seizure Mahazars Ex.P15, 16, 18 and 19/seizure mahazars were conducted by the IO continuously one after other the presence of CW24 and 25/mahazar witnesses.
132. According to the prosecution Ex.P15/Seizure Mahazar was conducted at the first floor of the House No.58, 3rd Cross, RMS Colony, on 13.04.2010 between 12.35 a.m. to 01.25 a.m in the presence of 113 SC No.1011/2010 CW24 and CW25 as per voluntary statement alleged to have given by accused No.1. As per the said mahazar PW65 has conducted the mahazar and seized 4 chains, 2 necklace, a bracelet, Rs.92,000/- cash and a Nokia mobile phone as narrated in the mahazar. The said properties were produced by accused No.1 from the almera kept in the room.
133. According to the prosecution Ex.P16/Seizure Mahazar was conducted in front of the House No.207, 3rd Cross, 3rd Main, KEB Layout, Sanjayanagara on 13.04.2010 01.45 a.m to 02.15 a.m. in the presence of CW24 and CW25 as per voluntary statement alleged to have given by accused No.7. As per the said mahazar PW65 has conducted the mahazar and seized a necklace, a pair golden bangles, Rs.8,000/- cash, a Nokia Mobile and Ex.P17/Receipt issued by Mutthoot Finance as narrated in the mahazar. The said properties were produced by accused No.7 from the almera kept in the room.
134. According to the prosecution Ex.P18/Seizure Mahazar was conducted at House No.126, situated at 2nd Floor, 80 feet Main Road, Sanjayanagar, on 13.04.2010 between 02.30 a.m. to 03.00 a.m. in the 114 SC No.1011/2010 presence of CW24 and CW25 as per voluntary statement alleged to have given by accused No.2. As per the said mahazar PW65 has conducted the mahazar and seized and seized a pair bangles, one chain, Rs.9,000/- cash, a Nokia Mobile Phone, a Reliance phone as narrated in the mahazar. The said properties were produced by accused No.2 from the ward rob of 1st room.
135. According to the prosecution Ex.P19/Seizure Mahazar was conducted near the House No.4/60, situated at 7th Main, 4th Block, Nandini Layout, within the jurisdiction of Nandini Layout Police Station on 13.04.2010 between 03.45 to 04.15 a.m., in the presence of CW24 and CW25 as per voluntary statement alleged to have given by accused No.4. As per the said mahazar PW65 has conducted the mahazar and seized a pair of golden bangles, a chain, Rs.9,000/- cash and a Nokia Mobile as narrated in the mahazar. The said properties were produced by accused No.4 from the almera kept in the room.
136. In order to prove Ex.P15, 16, 18 and 19/seizure mahazars, the prosecution has examined CW24 as PW17. In his evidence, PW17 has not at all deposed about the voluntary statement given accused No.1, 7, 115 SC No.1011/2010 2 and 4 in his presence. He has stated that accused No.1, 7, 2 and 4 have produced ornaments, cash and mobile phones from their respective almeras/ wardrobe. Except that, he has not at all stated anything with regard to the said properties. In the cross-examination, it is elicited that he is the resident of 9th Cross, Malleshwaram, he cannot say the IMEI number of the mobile phones seized before him, no chit was affixed on the properties seized which bears his signature, cannot say the weight of the ornaments seized in his presence, has not traveled in the Police vehicle and not followed the Police vehicle, cannot say which Notes seized from the custody of which accused. From the evidence of PW17, it is very much clear that Ex.P15, 16, 18 and 19/mahazars have not been conducted in pursuance of the voluntary statement alleged to have been given by the accused No.1, 7, 2 and 4. Moreover, the PW17 is not inhabitant of the locality in which the said four mahazars are conducted. Prosecution has not examined CW25 another pancha witness.
137. Recovery of the items by conducting Ex.P15, 16, 18 and 19/mahazars create serious doubts in the mind of the Court for many reasons. According to the 116 SC No.1011/2010 prosecution and the IO on the voluntary statements given by accused No.1, 7, 2 and 4 straightway recovered the items in the presence of witnesses mentioned in respective mahazars. As noted supra PW17 has not whispered anything about accused No.1, 7, 2 and 4 have given voluntary statement as alleged by the prosecution. Moreover, it is not the case of the prosecution that the alleged almeras or wardrobe referred in the mahazars are locked and were in exclusive possession of accused No.1, 7, 2 and 4. When the almeras or wardrobe are not within the exclusive possession of the accused No.1, 7, 2 and 4 and accessible to all the menders of their respective family members the evidence placed on record is not sufficient to infer exclusive possession of accused No. 1, 7, 2 and 4 over the said almeras or wardrobe. If really the accused No.1, 7, 2 and 4 have given voluntary statements as alleged by the prosecution in the presence of PW17, in that case definitely he would have stated the said fact in his evidence. Non-deposing about voluntary statements given by accused No.1, 7, 2 and 4 in the evidence of PW17 falsify the entire case of the prosecution about conducting of Ex.P15, 16, 18 and 19/mahazars in 117 SC No.1011/2010 the presence of PW17 and CW25. In the absence of any discloser statement of accused No.1, 7, 2 and 4 the recovery of properties itself become meaningless and inadmissible in evidence.
138. Ex.P21 and 22/seizure mahazars were conducted in by the IO continuously one after another the presence of CW37 and 38/mahazar witnesses. According to the prosecution Ex.P21/ Seizure Mahazar was conducted near the House No.2, 6th Main Road, Vasanth Nagar on 13.04.2010 between 07.10 a.m. to 07.50 a.m., as per voluntary statement alleged to have given by accused No.5. As per the said mahazar PW65 has conducted the mahazar and seized a golden chain, a golden bracelet, Rs.8,000/- cash, a Sony Ericson and a Carben mobile phone as narrated in the mahazar. The said properties were produced by accused No.5 from the almera kept in the room.
139. According to the prosecution Ex.P22/Seizure Mahazar was conducted near the House No.166, 3 rd Cross, Floor Mill Road, Ashwath Nagar on 13.04.2010 between 08.10 a.m. to 08.45 a.m., as per voluntary statement alleged to have given by accused No.3. As per the said mahazar PW65 has conducted 118 SC No.1011/2010 the mahazar and seized one golden chain, one pair golden bangles, Rs.8,000/- cash as narrated in the mahazar. The said properties were produced by accused No.3 from the almera kept in left side room of the second floor.
140. In order to prove Ex.P21 and 22/seizure mahazars, the prosecution has examined CW37 as PW18. In his examination in chief, PW18 has not at all stated about the voluntary statement given by accused No.5 and 3 in his presence. He has stated that accused No.5 and 3 have produced ornaments, cash and mobile phones from their respective almeras. Except that, he has not at all stated anything with regard to the said properties. In the cross-examination, he has stated that no chit was affixed on the properties seized which bear his signature. Prosecution has not examined CW38 another pancha witness.
141. Recovery of the items by conducting Ex.P21 and 22/mahazars create serious doubts for various reasons. According to the prosecution and IO solely on the basis voluntary statements alleged have been given by accused No.5 and 3 straightway recovered the items in the presence of witnesses mentioned in 119 SC No.1011/2010 respective mahazars. PW18 has not whispered anything about accused No.5 and 3 have given voluntary statements as alleged by the prosecution. Moreover it is not the case of the prosecution that the alleged almeras are locked and said almeras were in exclusive possession of accused No.5 and 3. Evidence placed on record by the prosecution is not sufficient to infer exclusive possession of accused No.5 and 3. If really the accused No.3 and 5 have given voluntary statements as alleged by the prosecution in the presence of PW18, in that case definitely he would have stated the said fact in his evidence. Non-deposing about voluntary statements given by accused No.3 and 5 in the evidence of PW18 falsify the entire case of the prosecution about conducting of Ex.21 and 22/mahazars in the presence of PW18. Prosecution has not examined CW38. In the absence of any disclosure statement of accused No.5 and 3 the recovery of properties itself become meaningless and inadmissible in evidence.
142. In all six mahazars there is clear mention that CW43/Shivarudra, Gold Smith was present and examined the ornaments. PW65/IO has clearly stated in his evidence that he has not got examined the 120 SC No.1011/2010 seized ornaments from the gold smith. He is the star witness to speak about the seizure of ornaments are gold ornaments, its weight and description but prosecution failed to examine the said witness before the Court. Non-examination of CW40 is fetal to the case of prosecution.
143. That apart, the properties alleged have been seized from accused No.1, 7, 2, 4, 5 and 3 are not packed and sealed in the presence of mahazar witnesses. No paper slips containing signature of police as well as Panchas affixed on material objects seized and also no mention in mahazar as to value of the seized ornaments. Non-sealing the properties at the spot are serious infirmities because possibility of tempering with the properties cannot be ruled out. The evidence of PW17 and PW18 is not sufficient to prove the recovery of properties described in Ex.P15, 16, 18, 19, 21 and 22/mahazars at the instance of accused No. 1, 7, 2, 4, 5 and 3 respectively.
11th Ex.P8/Seizure Mahazar According to the prosecution Ex.P8/Seizure mahazar was conducted in front of the House No.182, situated at 4th Cross, 3rd Main, Kavika, 121 SC No.1011/2010 Deepanjalinagara on 13.04.2010 between 05.15 to 05.45 p.m., as per voluntary statement alleged to have given by accused No.6 and seized the Qualis Car as pointed by accused No.6 in presence of CW32 and
33.
144. In order to prove the Ex.P8/mahazar, the prosecution has examined CW33 as PW10. In his examination chief, PW10 has not at all stated about the voluntary statement given by accused No.6 in his presence. He has stated that accused No.6 shown the Qualis Car No.KA-04/B-2568. Except that, he has not at all stated anything with regard to the said car. If really the accused No.6 has given voluntary statement as alleged by the prosecution in the presence of PW10, in that case definitely PW10 would have stated the said fact in his evidence. Non- deposing about voluntary statement given by accused No.6 in the evidence of PW10 falsifies the entire case of the prosecution about conducting of Ex.P8/ mahazar in his presence. Prosecution has not examined CW33. In the absence of any disclosure statement of accused No.6 the seizure of Car itself become meaningless and inadmissible in evidence. The evidence of PW10 is not sufficient to prove the 122 SC No.1011/2010 recovery of properties described in Ex.P8/mahazar at the instance of accused No.6.
12th Ex.P11/Seizure Mahazar According to the prosecution Ex.P11/Seizure Mahazar was conducted in front of Swathi Delux Car Parking near KSRTC Bus Stand on 13.04.2010 between 06.05 to 06.30, as per joint voluntary statement alleged to have given by accused No.1 and 2 and seized Maruthi Omni Van and the knife in presence of CW34 to 36. There is mention in the mahazar that both accused shown the car but there is no mention that who shown the knife.
145. In order to prove the Ex.P11/mahazar, the prosecution examined CW34 as PW12. In his examination chief, PW12 has not at all stated about the voluntary statements given accused No.1 and 2 in his presence as mentioned Ex.P11/mahazar. However, he has stated accused No.6 shown the Maruti Omni Car No.KA-03/C-272. According to the PW12 one of the accused picked the knife which is packed in a cover and produced. In the cross- examination, he has stated that he does not know who picked the property from the vehicle and before 123 SC No.1011/2010 putting the signature to the mahazar he has not clearly read it and came to know about the contents of mahazar only after Police completed the writing it. If really the accused No.1 and 2 have given voluntary statement as alleged by the prosecution in his presence, in that case definitely PW12 would have stated the said fact in his evidence. Non-deposing about voluntary statement given by accused No.1 and 2 in the evidence of PW12 and material elicited in his cross examination falsifies the entire case of the prosecution about conducting of Ex.P11/mahazar in the presence of PW12. Prosecution not examined CW35 and 36. In the absence of any disclosure statement of accused No.6 the seizure of Car itself become meaningless and inadmissible in evidence. The evidence of PW12 is not sufficient to prove the recovery of properties described in Ex.P11/mahazar at the instance of accused No.1 and 2.
13th Ex.P24/Seizure Mahazar According to the prosecution Ex.P24/seizure mahazar was conducted in Muthoot Finance Company office situated at Dinnur Main Road as per the say of accused No.1 on 14.04.2010 between 10.30 a.m. to 11.30 a.m. and seized a golden chain, a 124 SC No.1011/2010 bracelet, a pair of golden bangles, a brown color cover, Appraisal Form and xerox loan receipt in presence of CW41 to 44.
146. In order to prove the Ex.P24/seizure mahazar, the prosecution has examined CW44 as PW26 and CW42 as PW19. As per the said mahazar, accused No.1 taken to the house of CW43/Sharan and then to Muthoot Finance. PW19 deposed that accused No.1 to 3 accompanied by Police, taken him to the Muthoot Finance. PW26 not identified the accused. In the cross-examination, he has stated that the Police have not sealed any of the articles seized in his presence, not mentioned the design of the articles and he cannot say the contents of Ex.P24.
147. In their examination chief, neither PW26 nor PW19 have stated about the voluntary statements given accused No.1 in their presence as mentioned Ex.P24/mahazar. If really the accused No.1 has given voluntary statement as alleged by the prosecution in the presence of PW26 and PW19, in that case definitely they would have stated the said fact in their evidence. Non-deposing about voluntary statement given by accused No.1 in their evidence falsifies the entire case of the prosecution about conducting of 125 SC No.1011/2010 Ex.P24/mahazar in their presence. Prosecution has not examined CW41 and 43. In the absence of any disclosure statement of accused No.1 the seizure of properties itself become meaningless and inadmissible in evidence. The evidence of PW26 and 19 is not sufficient to prove the recovery of properties described in Ex.P24/mahazar at the instance of accused No.1.
14th Ex.P25 and 15th Ex.P26/Seizure Mahazars According to the prosecution Ex.P25/seizure mahazar was conducted on 15.04.2010 by the side of NH-48 within the limits of Mahadevapura between 01.30 to 02.00 p.m., as per voluntary statement alleged to have given by accused No.1 to 3. As per the said mahazar PW65 has conducted the mahazar and seized BP Operator machine produced by accused No.1 by taking out the same from bushes in presence of CW41 and 42
148. Ex.P26/seizure mahazar was conducted on 15.04.2010 by the side of NH-48 within the limits of Gudemaranahalli hand-post between 03.00 p.m. to 04.00 p.m., as per voluntary statement alleged to have given by accused No.1 to 3. As per the said 126 SC No.1011/2010 mahazar PW65 has conducted the mahazar and seized partly burnt Stethoscope, mobile phone, mobile pouch, purse, rope pieces and other personal articles of the deceased jointly produced by accused No.1 to 3 in the presence of CW41 and 42.
149. In order to prove the Ex.P25 and 26/seizure mahazars, prosecution has examined CW42 as PW19. Prosecution has not examined CW41. In evidence, PW19 has not deposed about the voluntary statement alleged to have been given by the accused No.1 to 3 in his presence. Further deposed contrary to Ex.P25/mahazar and has stated that accused No.3 has produced the BP Operator machine as against the mention in the mahazar that accused No.1 has produced it. There is a serious inconsistency with regard to which accused produced out the BP Operator machine. In the cross-examination deposed that he was not read-over Ex.P25/mahazar, no signature on the chit affixed on the seized articles. He has not whispered that the articles seized by conducting Ex.P25/mahazar have been packed and sealed in his presence. If really the accused No.1 to 3 have given voluntary statement as alleged by the prosecution in the presence of PW19, in that case 127 SC No.1011/2010 definitely he would have stated the said fact in his evidence. Non-deposing about voluntary statement given by accused No.1 to 3 in his evidence falsifies the entire case of the prosecution about conducting of Ex.P25 and 26/mahazars in his presence. In the absence of any disclosure statement of accused No.1 to 3 the seizure of properties itself become meaningless and inadmissible in evidence. The evidence of PW19 is not sufficient to prove the recovery of properties described in Ex.P25 and 26/mahazars at the instance of accused No.1 to 3.
16th Ex.P28 /Seizure Mahazar Ex.P28/seizure mahazar was conducted on 15.04.2010 at Sri Sri Sri Chakra Sahitha Shaneshwara Temple, situated at 3rd Cross, Main Road Bhoopasandra, where the accused No.3 alleged to have put the golden chain in Hundi, between 10.30 to 11.20 o'clock in the presence of CW47 to 49 after opening the Temple Hundi, seized two pieces of a chain. Two witnesses shown as CW47 i.e., 1) Sri.L.Nagaraju and 2) Sri.M.Raju.
150. In order to prove the Ex.P28/seizure mahazar, prosecution has examined CW47/L.Nagaraju and 128 SC No.1011/2010 CW49 as PW21 and 20 respectively. PW20 and PW21 have not identified the accused No.3. In the cross- examination PW20 admits that he does not know what has been written in Ex.P28/Mahazar. In the cross-examination, PW21 admits that he does not know the weight of the seized chains mentioned or not.
151. In evidence, PW20 and 21 have not deposed about the voluntary statement alleged to have been given by the accused No.3 in their presence. They have not whispered that the articles seized by conducting Ex.P28/mahazar have been packed and sealed in his presence. If really the accused No.3 has given voluntary statement as alleged by the prosecution in their presence, in that case definitely they would have stated the said fact in their evidence. Non-deposing about voluntary statement given by accused No.3 in their evidence falsifies the entire case of the prosecution about conducting of Ex.P28/ mahazar in their presence. In the absence of any disclosure statement of accused No.3 the seizure of properties itself become meaningless and inadmissible in evidence. The evidence of PW20 and 21 is not sufficient to prove the recovery of properties 129 SC No.1011/2010 described in Ex.P28/mahazar at the instance of accused No.3.
18th Ex.P35 /Seizure Mahazar As per the prosecution Ex.P35/seizure mahazar was conducted on 16.04.2010 near the House No.58, 3rd Cross, RMS Colony, within the limits of Sanjayanagara Police Station and seized the motorcycle and knife produced by accused No.1 between 10.00 to 10.45 a.m., in presence of CW62 and 63.
152. In order to prove the said mahazar, prosecution has examined CW62 and 63 as PW29 and 30. Both the witnesses have turned hostile and not supported the case of prosecution.
153. Ex.P11, 25, 26, 28, 35/seizure mahazars are conducted and seized the properties narrated in the respective mahazars. Ongoing through the said mahazars, according to the prosecution, these mahazars are conducted solely on the basis of the voluntary statement alleged to have given by accused No.1 to 3. It is worth to note that to prove the said manazars PW12, 19, 20, 21, 29 and 39 have been examined but none of the witnesses have stated in 130 SC No.1011/2010 their evidence that the respective accused have given voluntary statement and in pursuance of the said voluntary statement in their presence and the properties narrated in the respective mahazars have been seized. It is also significant to note that the said mahazars were conducted when the respective accused were in Police custody. The said statements being in nature of confession before the Police are hit by Sec.25 of the Evidence Act. The law in this regard is very clear that the confession before the Police Officer by the accused when they were in Police custody cannot be called an extra judicial confession. If the confession is made by the accused before the Police and a portion of such confession leads to recovery of any incriminating material, such portion alone would be admissible u/s 27 of the Evidence Act and not the entire confessional statement. In the instant case, the confession statement alleged to have been made by the respective accused which leads to recovery of incriminating material which is admissible u/s 27 of the Evidence Act has not at all got exhibited by the prosecution. Though the information furnished to the Investigating Officer leading to discovery of the place of offence and 131 SC No.1011/2010 recovery of any incriminating material would be admissible to the extent indicated in Sec.27 r/w Sec.8 of the Evidence Act but the prosecution fails to get mark the relevant portion of such confessional statement which is admissible u/s 27 of the Indian Evidence Act though statements of said accused are available on record. In the absence of getting exhibited the relevant portion which leads to recovery of incriminating material, whatever the properties seized under such mahazars would be inadmissible in the eye of law. In other words the properties seized under Ex.P11, 25, 26, 28, 35 are without any voluntary statements of accused No.1 to 3. In the absence of voluntary statements of accused No.1 to 3 the said seizure of properties are inadmissible in the eye of law. Under the facts and circumstances of the case, in the considered opinion of this Court, the prosecution has utterly failed to prove the above said mahazars as required under law. Therefore, it is very much clear that whatever the properties narrated in Ex.P11, 25, 26, 28, 35 have no legal sanctity in the eye of law. For all practical purpose, the said mahazars have to be excluded from consideration while deciding the case on merits.
132 SC No.1011/2010154. That apart, Ex.P25, 26 and 92 are conducted on the basis of the joint statement of accused No.1 to
3. The properties are recovered on the basis of the confessional statement is admissible u/s 27 of the Evidence Act, provided IO is under obligation to state and record who gave information, when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. Where several accused have not given separate statement, a joint statement recorded from them leading to recovery of the properties is also inadmissible in evidence and no reliance could be placed upon the recoveries alleged to have been made in pursuance of the joint statement.
155. At the same time it is also important to note that Ex.P25 and 26/mahazars were conducted on 15.04.2010 i.e., after lapse of almost more than 5 days, the places shown in the said mahazars are the open place and is accessible to all the public and it is not within the exclusive possession of the accused persons. Even after lapse of more than 5 days, it is 133 SC No.1011/2010 highly unlikely that the said properties remained in the open space for so many days without being noticed by anybody. As the said places are accessible to the public, the story put-forth by the prosecution that the properties narrated in the above said mahazars have been seized also not free from doubt. The evidence of mahazar witnesses is not sufficient to prove the Ex.P11, 25, 26, 28, 35/seizure mahazars beyond all reasonable doubt.
156. As noted supra, the entire case of the prosecution is depending on the voluntary statement alleged to have been given by accused No.1 and other accused, in pursuance of the said voluntary statement, the Investigating Officer recovered articles by conducting several mahazars. Admittedly, some of the mahazar witnesses have turned hostile not supported the case of the prosecution. The mahazar witnesses who deposed about the conducting the seizure mahazars have not at all whispered in their evidence that the accused have given voluntary statements in their presence and in pursuance of said voluntary statements properties are recovered as alleged by the prosecution.
134 SC No.1011/2010157. Learned PP submitted that just because the evidence of independent mahazar witnesses is not sufficient to prove the seizure mahazars is not ground to disbelieve the prosecution case. The evidence of IO is sufficient to prove the seizure mahazars. In the light of the said submission now the question is the evidence of PW65/IO relating to conducting of mahazars and recovery is acceptable when the evidence of non-official witnesses is not worth to prove the seizure mahazar. It is true that there is no hard and fast rule not to accept the sole evidence of Investigating Officer to prove the mahazars, provided where the evidence of Investigating Officer who recovered the material objects is convincing, such evidence as to recovery need not be rejected on the sole ground that the seizure witness did not support the prosecution version.
158. In Crl.Pet.No.64-64/2022 relied on by learned Counsel for accused No.4 is decided by Hon'ble Apex Court consisting of Hon'ble Three Judges Bench. In the said judgment, the Hon'ble Apex Court has discussed as to the procedure of appreciation of evidence of discovery of fact at the instance of 135 SC No.1011/2010 accused as one of the incriminating circumstances in the chain of circumstances. The relevant Paras are extracted and reproduced hereunder;
"53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two indepen- dent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an ap- propriate statement as he may desire in re- gard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact state- ment or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the pur- pose of Section 27 of the Evidence Act is al- ways drawn at the police station in the pres- ence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his will- ingness on his own free will and volition to point out the place where the weapon of of- fence or any other article used in the commis- sion of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the ac- cused and the two independent witnesses 136 SC No.1011/2010 (panch witnesses) would proceed to the par- ticular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated un- der Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
54. The reason why we are not ready or rather reluctant to accept the evidence of dis- covery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evi- dence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evi- dence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discov- ery is that although one of the panch witnesses PW2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The sec- ond panch witness namely Pratap though avail- able was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent 137 SC No.1011/2010 witnesses to the discovery panchnama are not ex- amined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who de- posed to the fact of discovery based on the state- ment elicited from the accused on its own worth.
55. Applying the aforesaid principle of law, we find the evidence of the investigating offi- cer not only unreliable but we can go to the extent to saying that the same does not con- stitute legal evidence.
56. The requirement of law that needs to be ful- filled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has success- fully proved the contents of the discovery panch- nama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. . . . ."
159. From the above reproduced Paragraphs, it is evident that if, it is say of the IO that the accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the properties of offence then the first thing that IO should have done was to call for two independent witnesses at the police station 138 SC No.1011/2010 itself. Thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the properties of offence. When the accused while in custody makes such statement before the two independent panch witnesses the exact words uttered by the accused should be incorporated in the first part of the panchnama. This first part of the panchnama for the purpose of Sec.27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the properties of offence or any other article had been hidden. Then IO along with the accused and the two independent panch witnesses would proceed to the particular place as may be led by the accused. If from that particular place anything property related to the offence is discovered then that part of the entire process would form the second part of the panchnama.
139 SC No.1011/2010160. As discussed above, the Investigating Officer conducted several seizure mahazars. The places shown in Ex.P15, 16, 18, 22, 28 and 35 are situated within the limits of Sanjayanagara Police Station, the place shown in Ex.P19 situated within the jurisdiction of Nandini Layout Police Station, place shown in Ex.P21 situated within the High Grounds Police Station, the place shown in Ex.P24 situated within the jurisdiction of R.T.Nagar Police Station, the place shown in Ex.P25 is situated within the jurisdiction of Nelamangala Police Station and the place shown in Ex.P26 is situated within the limits of Kudur Police Station. The Investigating Officer has to follow the procedure as prescribed u/s 166(3)(4) of Cr.P.C.. As per Rule 4 of Sec.166, any Officer conducting search under Sub-Sec(3), shall forthwith send notice of the search to the officer in charge of the Police Station within the limits of which such place situated, shall also send with a copy of the list(if any) prepared u/s 100 of Cr.P.C. and shall also send to the nearest jurisdictional Magistrate to take cognizance of the offence along with the records referred in Sec.165(1) and (3) of Cr.P.C. Now, in this case the crucial question is whether the evidence of 140 SC No.1011/2010 PW65/Investigating Officer is convincing is to be ascertained.
161. Keeping in mind the above said provisions and ratio lay down by Hon'ble Apex Court, if we consider the present case, it is necessary to note that PW65/IO being the rank of Asst. Commissioner of Police, conducted the 6 mahazars in respect of the places situated within the limits of Sanjayanagar and one mahazar each in respect of the places situated within the limits of Nandini Layout, High Grounds, Nelamangala, and Kudur Police Stations. PW65 has not at all stated about following the procedure prescribed under Cr.P.C, about conducting the mahazar and giving intimation to the jurisdictional Police Station and the Magistrate. No explanation is offered by IO for non-following the procedure prescribed under the relevant provision of Criminal Procedure Code.
162. Before conducting the search, the concerned Police Officer is required to call upon some independent and responsible people of the locality to witness the search. It may also happen that no such person is available or even he is available he is not willing to be party to a search. It may also that after 141 SC No.1011/2010 joining such search, such person later on turned hostile. In any of these, eventualities, the evidence of the Police Officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search provided the evidence of Investigating Officer who recovered the material objects is convincing.
163. In the present case, none of the mahazar witnesses to any of the mahazars examined before the Court are local inhabitants of the places where the mahazars were conducted. PW17/ mahazar witness is not independent and responsible person of the locality of the places shown in Ex.P15, 16, 18 and 19. PW17 is resident of Malleshwaram situate more than 6 to 7 Kms. away from the spot where the said mahazars are conducted. It is not the contention of the Investigating Officer that he made efforts to secure the mahazar witnesses from that locality and they refused to come. In the cross-examination, PW65 in categorical terms admitted that around the houses of accused No.1, 7, 2 and 4, other houses are situated and he had no difficulty to call those persons to conduct the mahazar. It means even 142 SC No.1011/2010 though independent witnesses are available in the locality, PW65/Investigating Officer has not made any efforts to secure the presence of local witnesses and the mahazar was conducted in presence of the witness who is not local inhabitant.
164. Further PW65 admitted in his evidence that mahazar witnesses to other mahazars are also not independent and responsible persons of the locality of the places shown in Ex.P21, 22, 25, 26, 28 and 35 has not made efforts to secure the presence of local independent and responsible person of the locality to conduct above said mahazars. The material elicited in the cross-examination of PW65 it could be said that he does not had any difficulty to secure the presence of the local witnesses where he was intending to conduct the mahazar, but he has not made any efforts to secure the presence of local witnesses. No doubt it is true that the non- compliance of aforesaid provisions alone may not be the ground to acquit the accused. However, for the reasons discussed above and having regards to the facts and circumstances, where recovery is seriously disputed, non-compliance of the aforesaid fact play an important role. Absolutely no explanation offered 143 SC No.1011/2010 by the Investigating Officer as to why he has not made any efforts to collect the mahazar witnesses from the locality where he was conducting the mahazar. The evidence of Investigating Officer who recovered the material objects is convincing, such evidence as to recovery is liable to be rejected
165. It is equally important to note that as per the evidence of PW65/Investigating Officer, at the instance of the voluntary statement alleged to have been given by the accused persons conducted Ex.P15, 16, 18, 19, 21, 22, 24, 25, 28 and 35/ mahazars, the recoveries of the properties are made at various places and it is important to note that PW65 did not affixed paper slips with the signature of Police and mahazar witnesses on the properties seized in their presence. Even after seizure of those properties IO has not packed and sealed at the place where said properties are seized. If really, the Investigating Officer seized the properties as narrated in respective mahazars as required under law, it is incumbent on the Police to affix the paper slips, packed and sealed at the spot itself in presence of witnesses. PW65 in categorical terms admitted about non-sealing of properties under different mahazars 144 SC No.1011/2010 and non-sealing of seized properties soon after the seizure of properties in presence of witnesses is fetal to the case of the prosecution. PW65 has also admitted the availability of the seized articles in the market. Having regards to the manner in which the Investigating Officer has conducted the seizure mahazars, in the opinion of this Court, the recovery of the material properties by PW65 is not convincing. Hence, in the opinion of this Court the process of seizure is improper and incorrect. Under such circumstance, it cannot be ruled out that the properties are planted by the prosecution only to suit the purpose of its case.
166. At the same time it is important to note that in the present case, what this Court is noticed from the oral evidence of the PW65/IO has deposed that at about 11.00 p.m. when he was in CCB Office received credible information some of the accused are in their house. Immediately he proceed near to the house of accused No.1 along with his other police staff, secured the presence of independent panch witnesses, issued Ex.P14/notice to them went to the house of accused No.1, interrogated accused No.1, recorded voluntary statement of accused No.1 and 145 SC No.1011/2010 seized the golden ornaments and cash produced by accused No.1. The said procedure is followed in respect of accused No.7, 2, 4, 5, and 3. I have minutely gone through the evidence of IO and noticed that none of the accused expressed their willingness to point out the properties of offence the same was discovered under a panchnama. The IO has not secured the presence of independent panch witnesses at the Police Station. On the contrary, as per his evidence the presence of said witnesses secured at the spot itself. PW17/independent panch witness to the said mahazars has not said a word about such discovery. Even the IO has not deposed the exact words attributed to an accused, as statement made by them. Therefore, at no stretch of imagination it could be said that the investigating officer has proved the contents of Ex.P15, 16, 18, 19, 21 and 22/ discovery panchnamas. If we read the entire oral evidence of the PW65/IO, then it is clear that the same is deficient in all the discovery mahazars and prosecution has not conducted the said mahazars as per ratio lay down by Hon'ble Apex Court in the above referred judgment. Therefore, in the opinion of this Court the evidence of IO is no way 146 SC No.1011/2010 helpful to the prosecution to prove any of the discovery mahazars as said mahazars not done in accordance with law.
167. In view of the non-following the procedure by the Investigating Officer, the evidence given by PW65 is not convincing and therefore, the evidence of PW65 cannot be believed with regard to the conducting of Ex.P15, 16, 18, 19, 21, 22, 24, 25, 28 and 35/mahazars.
17th Ex.P92/Spot Mahazar Ex.P92/Spot Panchanama was conducted in respect of the place of dead body alleged to have thrown by accused No.1 to 3 at Kannagunni Bridge as spot pointed out by accused No.1 to 3 jointly in presence of CW41 and 42 between 05.30 to 06.15 p.m. In order to prove the said mahazar, the prosecution has examined CW42 as PW19.
20th Ex.P44/Mahazar As per the prosecution Ex.P44/mahazar was conducted on 25.04.2010 in the Sanjayanagara Police Station for the purpose of identification of properties seized under Ex.P26/mahazar by the witnesses. The seal of the properties are opened in 147 SC No.1011/2010 the presence the witnesses. After identification by CW1 and 20, the said articles are re-packed and sealed in presence of CW74 and 75. In order to prove the Ex.P44/mahazar, prosecution has examined CW74 and PW36.
168. On appreciation of evidence of mahazar witnesses placed on record by the prosecution, the contradictions and omissions pointed out above and the lacunas discussed above does not inspire the confidence of the Court to believe about conducting of mahazars except Ex.P4, Ex.P5, Ex.P13, Ex.P3, Ex.P74 and Ex.P75 mahazars.
169. Before appreciation of other evidence placed on record it is necessary to note the observation made by Hon'ble Apex in judgment passed in Cri.Appeal No.1597-1960/2022. It is observed that in a case of circumstantial evidence, the Court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of an evidence and the evidence must point towards only one conclusion, which is the guilt of the accused. In other words, a very heavy duty is cast upon the prosecution to prove its case, beyond reasonable doubt. In the said judgment the Hon'ble Apex Court extracted 148 SC No.1011/2010 reproduced the observation made in earlier judgment to the effect that "when the murder charge is to be proved solely on the circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role."
170. As noted supra, there is no direct evidence in this case, the prosecution has placed entire reliance on the circumstantial evidence. In case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of 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.
171. As the entire case of the prosecution rests on the circumstantial evidence, the entire burden is on the prosecution to prove each and every circumstance to complete the chain to prove the guilt of accused No.1 to 7.
149 SC No.1011/2010172. Keeping in view the aforesaid proposition of law, if we consider the submissions made by the learned Counsels appearing for the parties, the prosecution has to prove beyond all reasonable doubt the circumstances before and after the occurrences to decide about the complicity of the accused persons. From the case of prosecution, the prosecution has to prove following circumstances to bring home the guilt of the accused No.1 to 7:-
1. Prior to 09.04.2010, accused No.1 to 7conspires and made preparation and in pursuance of the same accused No.1 to 3 purchased knives from CW6,
2. Accused No.1 purchased Reliance Phone in the name of CW76,
3. Accused No.3 and 4 purchased rope from CW68,
4. Accused No.1 to 4 put the cooling paper to car at 'Star Accessories from CW64,
5. Accused No.1 to 4 meet at Physic Gym, Sanjaynagar and conspire to commit the act on the next day which has been witnessed by CW71 to 73,
6. On 09.04.2010 morning accused No.1 called Dr. Sharat Kumar through Reliance mobile seeking medical treatment,
7. At the instructions of accused No.1, accused No.4 and 6 abducted Dr. Sharath Kumar from his clinic for 150 SC No.1011/2010 wrongful gain, wrongfully confined him in the house of accused No.1,
8. All accused tied the Doctor Sharth Kumar to the chair with the help of rope, by showing knife demanded a ransom of Rs.50,00,000/- cash and jewelry and in pursuance of same Dr. Sharath Kumar forced to call to CW19/Shylendrakumar to give jewels to CW1, accordingly said CW19 handed over jewels to CW1
9. As per the instructions of accused No.1 to 3, accused No.4 collected said jewels from CW1,
10.Accused No.1 to 3 by putting monkey cap on Dr. Sharath Kumar take him in Maruti Van of accused No.2 towards Kunigal,
11.While so proceeding Dr. Sharath Kumar forced to call to CW19/Shylendrakumar demanding additional jewels and asked to handover to CW18/Nageshwarrao,
12.CW18/Nageshwarrao collected the additional jewels from CW19/Shylendrakumar
13.As per the instructions of accused No.1 to 3, accused No.5 collected said jewels from CW18,
14.Accused No.1 to 3 strangulated the neck of Dr. Sharath Kumar by using rope and caused his death.
15.In order to destroy the evidence threw the dead body near the bridge of Kannaguni Village, Kunigal Taluk, 151 SC No.1011/2010
16.Thereafter, purchased the petrol at Siddeshwar Service Station, to burn the belongings of the deceased within the limits of Mahadevepura and Guddemaranhalli by the side of NH 48,
17.Accused No.3 puts a part of the gold chain in Shani Mahatma Temple hundi.
18.On 12.04.2010 CW43/Sharnachar taken loan of Rs.1,63,000/- pledges some jewels at Muthoot Finance and gives to accused No.1
19.The said amount got distributed among accused No.1 to 5 and 7.
Circumstances of Sl.No.1 to 5 are in respect of before the occurrence of incident.
Circumstances of Sl.No.6 to 14 are in respect of the date of occurrence of incident.
Circumstances of Sl.No.15 to 19 are in respect of after the occurrence of incident.
173. The entire burden is on the prosecution to prove the above set of circumstances to prove the guilt of the accused No.1 to 7 beyond all reasonable doubt. If the prosecution fails to prove and link the chain, the entire benefit goes to the accused persons.
55. Now, the question is whether the prosecution is able to prove the above circumstance beyond reasonable doubt is to be seen.
152 SC No.1011/2010174. Firstly, the prosecution has to prove that prior to 09.04.2010, accused No.1 to 7 conspires and made preparation and in pursuance of the same, accused No.1 to 3 have purchased knives from the shop of CW69 situated at K.G.Circle. In order to prove the said allegations, the prosecution has examined CW69 as PW38. In his examination-in-chief has given go- bye to the prosecution case and has stated that on 16.04.2010, CCB Police brought accused No.4 to 6 to his shop and they purchased the knives from his shop. Though the witness treated as hostile and cross-examined, nothing has been elicited to prove the said allegations. PW38 denied to have given the statement as per Ex.P46 and 47. He has not at all spoken anything against accused No.1 to 3 with regard to the purchase of knives from his shop prior to 09.04.2010. Absolutely, nothing has been produced by the prosecution to prove the first circumstance.
175. Secondly, the prosecution has to prove that accused No.1 purchased Reliance Phone in the name of CW76. In order to prove the said circumstance, prosecution examined CW76 as PW35. In his examination-in-chief, he has stated that except 153 SC No.1011/2010 Driving License other documents are not belongs to him. In order to purchase the SIM, he handed-over the DL Copy to a person who was selling the SIM at footpath. He has not supported the case of prosecution and has not at all deposed anything as against accused No.1. Absolutely, nothing has been produced by the prosecution to prove that accused No.1 purchased Reliance Phone in the name of CW76 as alleged in the charge sheet.
176. Thirdly, the prosecution has to prove that accused No.3 and 4 visited to the shop of CW68 on 08.04.2010 to purchase the rope and have purchased ropes from his shop by paying Rs.50/-. In order to prove the said allegation, prosecution has examined CW68 as PW28. He has not supported the case of prosecution and turned hostile. Even after treating him hostile, nothing has been elicited to prove that accused No.1 to 4 purchased the rope from CW68 as alleged by the prosecution. He denied to have given the statement as per Ex.P34. Therefore, the prosecution also fails to prove that accused No.3 and 4 approached the shop of PW28 and have purchased the rope as alleged by the prosecution.
154 SC No.1011/2010177. Fourthly, the prosecution has to prove that on 08.04.2010 at about 11.30 a.m., accused No.1 to 4 approached CW64/Star Car Accessories, situated at Mattikere Main Road, Yashawanthapura and asked to fix the cooling paper to the Maruthi Omni Car bearing No.KA-03/C-2723. In order to prove the said allegation, prosecution has examined CW64 as PW31. In his examination-in-chief, he has not supported the case of prosecution and has clearly stated that he cannot identify the people who visited his shop to get fix the cooling paper to their car. The learned PP treated said witness as hostile and cross- examined. In the cross-examination, he denied to have given the statement as per Ex.P36. Therefore, the prosecution also fails to prove that accused No.1 to 4 approached the Star Car Accessories shop and got fixed the cooling papers on 08.04.2010 as alleged by the prosecution.
178. Fifthly, the prosecution has to prove that on 08.04.2010, accused No.1 to 4 met each other at Physic Gym, Sanjayanagara and conspired to commit to act on the next day and it has been witnessed by CW71 to 73. In order to prove the said allegations, among CW71 to 73, prosecution examined CW72 as 155 SC No.1011/2010 PW33 and CW73 as PW34 and has not examined CW71. Both PW34 and 34 have not supported the case of prosecution and have not at all whispered anything about the witnessing the conspiracy to commit the act as alleged by the prosecution on the next day. Even after treating both the witnesses as hostile, nothing has been elicited from their mouth to believe the story of conspiracy of committing to act on the subsequent day as alleged by the prosecution. PW33 denied to have given the statement as per Ex.P40 and PW34 denied to have given the statement as per Ex.P41. Since none of the witnesses have given evidence in accordance with the prosecution case to prove the fifth circumstance, it could be said that the prosecution has fails to prove the fifth circumstance against the accused No.1 to 4.
179. Sixthly, the prosecution has to prove that on 09.04.2010 morning accused No.1 called Dr. Sharat Kumar through Reliance mobile seeking medical treatment. As discussed at second circumstance prosecution fails to prove accused No.1 purchased Reliance Mobile in the name of CW76/Lokesh.
180. In order to prove the phone conversation made through mobile between the deceased and accused 156 SC No.1011/2010 No.1, the prosecution has examined CW88/Rajesh, Nodal Officer of Idea Cellular Limited as PW48 and produced the documents furnished at the time of purchasing the SIM and the CDR of the Mobile phone of deceased at Ex.P57. First of all the said document is marked subject to objection. Secondly, as discussed above the said Ex.P57/CDR cannot be looked into for want of Sec.65B Certificate and therefore, Ex.P57/document is inadmissible in evidence. Moreover, the prosecution also fails to prove that mobile SIMs alleged to have been used by the deceased and accused No.1, as alleged by the prosecution in the charge-sheet. Absolutely no material produced by the prosecution to prove the said circumstance by placing positive admissible evidence and therefore, in the opinion of this Court prosecution utterly failed to prove sixth circumstance beyond all reasonable doubt.
181. Seventhly, the prosecution has to prove that at the instructions of accused No.1, accused No.4 and 6 abducted Dr.Sharath Kumar from his clinic for wrongful gain and wrongfully confined him in the house of accused No.1. In order to prove that at the instructions of accused No.1, accused No.4 and 6 157 SC No.1011/2010 abducted Dr.Sharath Kumar from his clinic for wrongful gain prosecution has not produced any evidence. None of the witnesses deposed in that regard. Therefore, prosecution failed to prove the said allegation. However, in order to prove that accused No.4 and 6 abducted Dr. Sharath Kumar from his clinic, the prosecution has placed entire reliance on the evidence of CW20 who has been examined as PW24. According to the prosecution, she is the only witness who saw the abduction of Dr.Sharath Kumar by accused No.4 and 6. Now the question is whether the evidence of PW24 is sufficient to prove that accused No.4 and 6 abducted Dr.Sharath Kumar from his clinic. On perusal of the evidence given PW24, it is noticed that in the examination-in-chief, she deposed that a 25 year old person taken the Doctor in Qualis Car. In the Open Court she identified the person who taken Doctor by showing Bhooshith and accused No.6 was driving the car. Therefore, PW24 was treated as hostile and PP suggested that she has given statement before IO to the effect that accused No.4 taken Dr.Sharath Kumar. In the cross-examination by the Advocate she has clearly deposed that she cannot say facial or personal 158 SC No.1011/2010 appearance or identity, height who took the Doctor from the Clinic on the date of incident and she has identified the accused mistakenly on last occasion who was not seen by her and she has got some short sight defect. If we consider the evidence of PW24 as a whole, it could be said that she wrongly identified the person in the open Court by showing Bhooshith who is accused No.5 in this case. Further she does not know the facial appearance, personality of the persons who taken the Doctor from the Clinic. She has admitted about identification of accused mistakenly and who was not seen by her and she has short-sight problem. Even PW24 has not stated the physical appearance, identification, face, personality of accused No.6. As discussed in the previous paragraphs the prosecution also fails to prove that the TIP conducted in a fair manner by taking precautions. Moreover, during the TIP PW24 identified accused No.2 to 6 though there was no occasion for her to see the accused No.3, 5 and 6.
182. At the same time it is necessary to note that CW87 is the owner of the Qualis vehicle. Prosecution examined CW87 as PW47. In his evidence he has not stated that accused No.6 was the driver of his Qualis 159 SC No.1011/2010 Car on the alleged date of incident and has turned hostile. The hostility of PW47 is fatal to the case of prosecution. The evidence placed on record by the prosecution is too insufficient to prove that accused No.4 and 6 abducted Dr.Sharath Kumar from his Clinic as per the instructions of accused No.1. No admissible evidence produced by the prosecution to prove the said circumstance and therefore, in the opinion of this Court prosecution utterly failed to prove seven circumstance beyond all reasonable doubt.
183. Eighthly, the prosecution has to prove that all accused tied the Doctor Sharath Kumar to the chair with help of rope in the house of accused No.1, by showing knife demanded a ransom of Rs.50,00,000/- cash and jewelry and in pursuance of same Dr. Sharath Kumar forced to call to CW19/ Shylendrakumar to give jewels to CW1, accordingly said CW19 handed over jewels to CW1. None of the prosecution witnesses examined before the Court have stated the said fact before the Court. The voluntary statements alleged to have been given by the accused in this regard is inadmissible and except the voluntary statements alleged to have been given 160 SC No.1011/2010 by the accused absolutely nothing has been produced by the prosecution to prove the said allegations. Moreover, IO has neither conducted the mahazar of that place nor seized the chair, rope or knife alleged to have been used for commission of said offence. If really incident happened as alleged by the prosecution, definitely the IO would have inspected the said spot and seized the materials alleged to have been used for commission of offence. Non-visiting to the said spot and non-seizing the materials alleged to have been used for commission of offence by the IO is also fatal to the case of the prosecution.
184. Now the next question is whether the prosecution proved that Dr. Sharath Kumar forced to call to CW19/Shylendrakumar to give jewels to CW1 and accordingly said CW19 handed over jewels to CW1. The prosecution has not produced any admissible evidence to prove the allegation that Dr. Sharath Kumar made call to CW19/Shylendra Kumar to give jewels to CW1. As discussed above, the prosecution has utterly failed to prove that the phone No.9800042339 belongs to the deceased Dr.Sharath Kumar and phone No.9880095460 belongs to PW2. In the absence of any admissible evidence, in the 161 SC No.1011/2010 opinion of this Court, the prosecution utterly failed to prove the mobile numbers of Dr.Sharath Kumar and PW2 as alleged in the charge-sheet. In view of discussion in the previous paragraphs the CDR's produced by the prosecution cannot be looked in for want of Sec.65B Certificate. In the absence of evidence of demanding ransom and Dr.Sharath Kumar, called CW19 to give jewels to CW1 the question as to whether the CW19 handed over the jewels to CW1 does not arise at all. No doubt the prosecution has produced some evidence to the effect that CW19 handed over box of jewels to the CW1 but that evidence is no way sufficient to link the act of any of the accused. No admissible evidence produced by the prosecution to prove the said circumstance and therefore, in the opinion of this Court prosecution utterly failed to prove eighth circumstance beyond all reasonable doubt.
185. Ninthly, the prosecution has to prove that as per the instructions of accused No.1 to 3, accused No.4 collected said jewels from CW1. None of the prosecution witnesses examined before the Court have deposed the said fact before the Court. The voluntary statements alleged to have been given by 162 SC No.1011/2010 the accused in this regard is inadmissible and except the voluntary statements alleged to have been given by the accused, absolutely nothing has been produced by the prosecution to prove the said allegations. It is necessary to note that CW1 lodged Ex.P1/complaint filed on 10.04.2010 she has not mentioned about this fact. Even in Ex.P2/complaint filed on 11.04.2010 also she has not mentioned about the physical appearance of facial features of the person who alleged to have taken the ornament box from her. There is no iota of evidence produced by the prosecution to prove ninth circumstance. Therefore, in the opinion of this Court prosecution utterly failed to prove ninth circumstance beyond all reasonable doubt.
186. Tenthly, the prosecution has to prove that accused No.1 to 3 by putting monkey cap on Dr. Sharath Kumar take him in Maruti Van of accused No.2 towards Kunigal. According to the prosecution, CW27 and 28 witnessed the said incident. In order to prove the said allegation, prosecution has examined CW27 as PW25. He has not supported the case of prosecution and turned hostile. Even after treating him hostile, nothing has been elicited to 163 SC No.1011/2010 prove the said allegations and he has denied to have given the statement as per Ex.P33. The hostility of PW25 falsifies the entire case of the prosecution with regard to the allegations of the prosecution that accused No.1 to 3 have taken Dr.Sharath Kumar by putting monkey cap to him in the Maruthi Van belongs to accused No.2. The prosecution has not examined CW28. In the absence of any evidence, it can be safely come to the conclusion that the prosecution has utterly failed to prove tenth circumstance beyond all reasonable doubt.
187. Eleventhly, the prosecution has to prove that while so proceeding in Maruti Van Dr. Sharath Kumar forced to call to CW19/Shylendrakumar demanding additional jewels and asked to handover to CW18/Nageshwarrao. The prosecution has not produced any admissible evidence to prove the allegation that Dr. Sharath Kumar forced to call to CW19/Shylendrakumar to give additional jewels to Nageshwarao. As discussed above, the prosecution has utterly failed to prove that the phone No.9800042339 belongs to the deceased Dr.Sharath Kumar and phone No.9880095460 belongs to CW19. In the absence of any admissible evidence, in the 164 SC No.1011/2010 opinion of this Court, the prosecution utterly failed to prove the mobile numbers of Dr.Sharath Kumar and PW2 as alleged in the charge-sheet. In view of discussion in the previous paragraphs the CDR's produced by the prosecution cannot be looked in for want of Sec.65B Certificate. No admissible evidence produced by the prosecution to prove the said circumstance and therefore, in the opinion of this Court prosecution utterly failed to prove eleventh circumstance beyond all reasonable doubt.
188. Twelthly, the prosecution has to prove that CW18/Nageshwarrao collected the additional jewels from CW19 /Shylendrakumar. Since the prosecution fails to from the earlier circumstance, the question as to whether the CW19 handed over the jewels to CW18 does not arise at all. No doubt the prosecution has produced some evidence to the effect that CW19 handed over box of jewels to the CW18 but that evidence is no way sufficient to link the act of any of the accused. No admissible evidence produced by the prosecution to prove the said circumstance and therefore, in the opinion of this Court prosecution utterly failed to prove this circumstance beyond all reasonable doubt.
165 SC No.1011/2010189. Thirteenthly, the prosecution has to prove that as per the instructions of accused No.1 to 3, accused No.5 collected said jewels from CW18. In order to prove the said allegations, the prosecution has examined the said CW18 as PW23. On his evidence has not stated anything as per the instructions of accused No.1 to 3, accused No.5 collected jewels from him. Even otherwise also, in the statement recorded by the Investigating Officer, has stated that he has handed-over the jewels to one Vinay. Whereas, PW23 in his evidence, he identified the person by name Bhushith, who is accused No.5 in this case by saying that his name is Naveen. Further it has come in his evidence that he does not know anything about the articles inside the box and his signature has not been taken by the Jewelry Shop owner while handing over the jewels to him. On appreciation of the evidence of PW23, it could be said that his evidence is not in accordance with the prosecution case. The evidence on record is not insufficient to prove that the accused No.5 collects the jewels from CW18/Nageshwara Rao as per the instructions of accused No.1 to 3. Therefore, in the opinion of this Court, the prosecution also fails to prove this circumstance.
166 SC No.1011/2010190. Fourteenthly, prosecution has to prove that accused No.1 to 3 strangulated the neck of Dr. Sharath Kumar by using rope and caused his death.
191. Fifteenthly, the prosecution has to prove that after committing the murder of Cr.Sharath Kumar in order to destroy the evidence threw the dead body near the bridge of Kannaguni Village, Kunigal Taluk. In order to prove the said circumstances, absolutely nothing has been placed on record by the prosecution. None of the prosecution witnesses examined before the Court have deposed the said fact before the Court. The voluntary statements alleged to have been given by the accused in this regard is inadmissible and except the voluntary statements alleged to have been given by the accused, absolutely nothing has been produced by the prosecution to prove the said allegations. There is no iota of evidence produced by the prosecution to prove this circumstance. Therefore, in the opinion of this Court prosecution utterly failed to prove fourteenth and fifteenth circumstance beyond all reasonable doubt.
192. Sixteenthly, the prosecution has to prove that thereafter, accused No.1 to 3 purchased the petrol at Siddeshwar Service Station, and burn the belongings 167 SC No.1011/2010 of the deceased within the limits of Mahadevepura and Guddemaranhalli by the side of NH 48. In order to prove that the accused No.1 to 3 purchased the petrol at Siddeshwara Service Station to burn the belongings of the deceased, prosecution has examined CW57 as PW27. In his evidence has not at all supported the case of prosecution and has not at all stated that the accused No.1 to 3 have purchased the petrol as alleged by the prosecution in the petrol bunk. Therefore, in the absence of any admissible evidence the allegation of purchasing the petrol by accused No.1 to 3 in the Siddeshwara Service Station and burn the belongings of the deceased within the limits of Mahadevepura and Guddemaranhalli by the side of NH 48 as alleged by the prosecution. Even the prosecution fails to prove Ex.P25 and 26/seizure mahazars in accordance with law. The evidence on record is not sufficient to prove the sixteenth circumstance and the said circumstance also remains intact without any proof. Therefore, the prosecution fails to prove the sixteenth circumstance beyond all reasonable doubt.
193. Seventeenthly, the prosecution has to prove that accused No.3 puts a part of the gold chain in 168 SC No.1011/2010 Shani Mahatma Temple hundi. In order to prove the said allegation, prosecution has not examined any of the witnesses. None of the prosecution witnesses have stated that anybody saw that accused No.3 put the chain Sri Shanimahathma Temple Hundi. The recovery was made solely on the voluntary statement alleged to have been given by accused No.3. In pursuance of the voluntary statement, the Investigating Officer in presence of CW47 to 50 by conducting Ex.P28/mahazar, seized two pieces of a chain. As discussed above, PW20 and 21 have not supported the case of prosecution and turned hostile. Absolutely, nothing has been produced on record except the evidence of Investigating Officer. In the absence of any positive independent evidence, the sole evidence of Investigating Officer who acted solely on the basis of voluntary statements alleged have given by accused No.3 is not sufficient to prove the recovery of two pieces of chain by conducting Ex.P8/ mahazar. From the evidence on record, it could be said that the prosecution also fails to prove that accused No.3 put a golden chain in the Shani Mahathma Temple Hundi as alleged in the charge- sheet.
169 SC No.1011/2010194. Eighteenthly, the prosecution has to prove that on 12.04.2010 CW43/Sharnachar taken loan of Rs.1,63,000/- by pledging some jewels at Muthoot Finance and gives to accused No.1. No witnesses examined by the prosecution to prove the said allegation. According to the prosecution the recovery of ornaments made solely on the voluntary statement alleged to have been given by accused No.1 and CW43. The IO seized the Ex.P17/zerox copy of the receipt from the custody of accused No.7. In the voluntary statement of accused No.7 alleged to have been recorded by IO, she has produced the Ex.P17/receipt stating that the properties and receipt fallen to her share. Admittedly the accused No.1 has not given any voluntary statement in respect of Ex.P17/receipt. So as per the voluntary statement alleged to have given by accused No.7 the IO came to know that the ornaments mentioned in the Ex.P17 fallen to the share of accused No.7. If that is so the accused No.7 is the best person to explain with regard to the said receipt. No investigation made in this regard. Since Ex.P17 receipt from the custody of accused No.7, the voluntary statement alleged to have been given by accused No.1 is inadmissible.
170 SC No.1011/2010Even otherwise except the voluntary statements alleged to have been given by the accused No.1, absolutely nothing has been produced by the prosecution to prove the said allegations. To prove the said allegation, CW43/Sharanachar is the best witness. For the best reasons known to the prosecution, the said CW43 has not been examined. He is important witness to say who handed over the ornaments to him to pledge and whether he gave amount to accused No.1. Nothing has been produced by the prosecution as to when the ornaments are got distributed and the date and time of handing over of ornaments to CW43 and who handed over the same to CW44, the question of considering that CW43 pledged the ornaments on the instructions of accused No.1 and borrowed money from Muthoot Finance does not arise.. In the absence of all these particulars it is difficult to believe the case of prosecution in this regard. Since none of the witnesses given evidence in this regard, it could be said that the prosecution also fails to prove that CW43/Sharnachar taken loan of Rs.1,63,000/- by pledging some jewels at Muthoot Finance and gives to 171 SC No.1011/2010 accused No.1. The said allegation is also remains intact without any proof.
195. The last and Nineteenthly, the prosecution has to prove that the amount of Rs.1,63,000/- and ornaments got distributed among accused No.1 to 5 and 7. In order to prove the said allegation, the prosecution has not produced any iota of evidence. None of the witnesses have stated that an amount of Rs.1,63,000/- and the ornaments alleged to have been collected by abducting Dr.Sharath Kumar, got distributed among accused No.1 to 5 and 7. In order to prove the said allegations, none of the witnesses have been examined by the prosecution.
196. It is very interesting to note that according to the evidence placed on record by the prosecution, in the year 2010 accused No.3 and 5 were studying BBM. On 10.04.2010, both of them went to College study tour and they returned back to Bengaluru on 13.04.2010 at 07.30 a.m. According to the evidence of PW13, who was the Lecturer of the College, wherein the accused No.3 and 5 were arrested by CCB Police soon after they arrived to Bengaluru from the tour. The IO arrested both the accused persons and recorded the voluntary statement alleged to have 172 SC No.1011/2010 been given by accused No.3 and 5, seized the golden ornaments and cash from accused No.5 by conducting Ex.P21/mahazar on 13.04.2010 between 07.10 to 07.50 a.m., and from accused No.3 seized cash and ornaments by conducting Ex.P22/mahazar on 13.04.2010 between 08.10 to 08.45 a.m. According to the prosecution case itself, CW43/ Sharanachar borrowed the loan by pledging ornaments on 12.04.2010. Admittedly, On 12.04.2010, neither accused No.3 nor accused No.5 were available in Bengaluru. Soon after their return to Bengaluru, they were arrested and the properties are seized. Such being the case as to when the said amount and ornaments given to accused No.3 and 5 is a billion dollar question. In this regard absolutely, nothing has been stated by the Investigating Officer. That apart it is very important to note that according to the prosecution, the cash and ornaments seized from the house of accused No.3 and 5 from the almeras kept in the respective houses. It is not the case of the prosecution that the said almeras in the exclusive custody of the either accused No.5 or accused No.3. Even no investigation is made by the 173 SC No.1011/2010 IO as to when accused No.5 and 3 received the gold ornaments and cash and kept in the almera.
197. At the same time it is also necessary to note that nothing has been stated by the Investigating Officer as to date, time and place where accused No.1 to 5 and 7 got distributed the ornaments and cash among themselves. In the absence of any positive evidence, in the considered opinion of this Court, the prosecution has utterly failed to prove the last circumstance. The said circumstance is also remains intact without any proof.
198. Thus, having regard to the totality of circumstances and the evidence on record, it is difficult to hold that the prosecution has proved the guilt of the accused No.1 to 7 by adducing cogent and clinching evidence. As per the settled legal position, in order to sustain conviction, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused only and none else. The circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. As demonstrated 174 SC No.1011/2010 earlier, the evidence with regard to the mobiles alleged to have been used by deceased, accused No.1 to 4, 6, PW2 and 23. CDR of mobiles, test identification conducted by the Taluka Executive Magistrate, mismatching of ornaments alleged to have given by PW2 to PW1 and PW23 and inconsistencies in filing complaints by CW1, the discoveries and recoveries of the incriminating articles, the seizures and sealing of the articles soon after seizure are also not proved by the prosecution by leading, cogent, clinching and clear evidence much less unerringly pointing the guilt of the accused No.1 to 7. The evidence placed on record by the prosecution also not sufficient to prove the last seen theory of the deceased in the company of the accused and recovery from the custody of accused No.1 to 7 as required under law.
199. On appreciation of evidence placed on record though the prosecution has proved that the of deceased D.Sharat Kumar is homicidal but fails to prove the Motive, Evidence of the prosecution witnesses/last seen theory of the deceased in the company of the accused and Arrest and recovery in accordance with law. The prosecution has to bring 175 SC No.1011/2010 home the charges leveled against them beyond reasonable doubt, which the prosecution has failed to do in the instant case, resultantly, the Court is left with no alternative but to acquit the accused No.1 to 7, though alleged to have involved in a very heinous crime. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the Society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the sole ground that the recoveries are made on the voluntary statements alleged to have been given by the accused No.1 to 7 which are in admissible in the eye of law. The Courts strictly decide the case on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise. Having said that and for the reasons stated above, accused No.1 to 7 are entitled for acquittal from the charges leveled against them by giving them a benefit of doubt. For the reasons discussed above, I answer point No.1 to 5 in the negative.
176 SC No.1011/2010200. Before parting with the judgment it is necessary to note that my predecessor in office while marking Material Objects, through PW6 shirt, Underwear, Baniyan, Pant belt, Shoes and Socks are marked as MO30 to 35 respectively. As it could be seen from the records the very same MO's are again marked in the evidence of PW65 as MO65 to 72. So also in the evidence of PW65 Maruti van and knife both are marked as MO74. No object is marked at MO73. After noticing the mistakes done while marking the MO's the learned PP filed Memo for rectification of the said mistakes. Advocates for accused No.1 to 7 submitted no-objections for rectification of the mistake committed at the time of marking of MO's. To avoid the confusion separate order is passed on 22.12.2022. As per the said order a direction came to be issued to the office to mark the Maruti van as MO73 instead of MO74 and retain knife as MO74 and to show about the marking of MO30 to 35 in front of MO65 to 72 and visa vis. In pursuance of said order the fresh typed MO list is prepared by the Office and kept in the file along with the previous list.
177 SC No.1011/2010201. It is needless to say that in view of Section 357(A) Cr.PC, the family members of the deceased would be entitled to the compensation even though the accused have been acquitted. Hence, in the opinion of this Court the wife and children of the victim would be entitled to the compensation. The judgment shall be place before the District Legal Services Authority, Bengaluru, for granting the compensation as permissible in accordance with law.
202. Point No.6:- In view of my above findings on point No.1 to 5, I proceed to pass the following:-
ORDER Accused No.1 to 7 are not found guilty for the offences punishable u/s 342, 364(A), 302, 201, 120-B r/w Sec.34 of IPC.
Acting u/s 235(1) of Cr.P.C. accused No.1 to 7 are acquitted for the offences punishable u/s 342, 364(A), 302, 201, 120-B r/w Sec.34 of IPC.
The bonds executed by the accused No.1 to 7 and their surety shall be in force for a period of six months as prescribed u/s 437-A of Cr.P.C.178 SC No.1011/2010
MO1 to 5, 39, 41 42, 45, 47 and 50 are released to the custody of the complainant/Smt.Anjali Sharath Kumar, the wife of deceased Dr.Sharath Kumar, through order dated 05.10.2018, MO6 to 27 are released to the custody of the PW2/ Shylendrakumar S/o Nirmalkumar through order dated 21.05.2010, MO36-Qualis Car No.KA-04/B-2568 is released to the custody of the RC Owner through order dated 03.06.2010, MO73-Maruti Van No.KA-03/C- 2729 is released through order dated 21.10.2011. All these orders are made absolute.
MO28 to 35, 51 to 55, 60 to 64 are worthless and hence they are ordered to be destroyed after the appeal period is over.
MO37, 38, 40, 43, 44, 46, 48, 49, 56 to 59 and 74 are ordered to confiscate to the state after the appeal period is over.
By over-sight MO28 to 35 are again marked as MO65 to 72. Therefore, there is no need to pass any order in respect of MO65 to 72.
179 SC No.1011/2010Bike Reg. No.KA-01/EC-7539 is seized by conducting Ex.P35/mahazar and reported under PF No.28 has not been produced before the Court. Nobody has claimed the right over the said motor cycle and therefore, the Asst. Commissioner of Police, Special Enquiry Squad, CCB, Bengaluru City is directed to confiscate to the State as prescribed under law.
(Dictated to Judgment Writer, transcribed by her, taken print out, corrected by me and then pronounced in the open-court on 28th day of December 2022) (A.V.PATIL) LXIII Addl. City Civil and Sessions Judge (CCH-64), Bengaluru City.
ANNEXURE List of witnesses examined for the prosecution:-
PW1 : Anjali Sharath W/o Late Dr. Sharathkumar PW2 : Shylendrakumar S/o Nirmalkumar PW3 : Guruprashanth S/o Annajimadi PW4 : G.U.K. Holla S/o Vishweshwara Holla PW5 : Gangadaraiah S/o Lingaiah PW6 : Mallikarjunaiah S/o Huchhaveeraiah PW7 : Chikkalingaiah S/o Linganna 180 SC No.1011/2010 PW8 : Sheshadri Iyengar S/o Late.Rajagopalachar PW9 : Vikram Singh S/o Jayasimha PW10 : Jose Arul Bruto S/o Vishwasan PW11 : Hanumantharayappa S/o Muniswamappa PW12 : Ravi Upadyaya S/o Sadashiva Upadyaya PW13 : Mallikarjun Chennamal S/o Gurappa PW14 : Mohammed Anwar S/o Abdul Azeez PW15 : Lakshmana S/o Huchhathimmegowda PW16 : Thammanna S/o Nanjappa PW17 : Harirao Sindhya S/o Ramachanda Rao PW18 : Sreeshyla S/o Dr.Seetharam PW19 : Mahesh Kumar S/o Krishnaraj PW20 : Krishnappa S/o Byrappa PW21 : Nagaraj S/o Lakshmaiah PW22 : Divakar S/o Lakshminarayan PW23 : Nageshwar Rao S/o Govinda Rao PW24 : Deenamma W/o Dohi Kutti PW25 : Ravi S/o Koosanna PW26 : Anand Shetty S/o Late Manjaiah Shetty PW27 : Sridhar S/o Cheluvaiah PW28 : Sudheer S/o Shekar PW29 : Subbareddy S/o Venkataswamy PW30 : Shivanna S/o Ramaiah PW31 : Sheik Irfan S/o Sheik Ameerjhan 181 SC No.1011/2010 PW32 : Ravikumar Reddy S/o Venkataramana Reddy PW33 : Ambareesh S/o Yellappa PW34 : Sadananda S/o Byrappa PW35 : Lokesh S/o Yelumalai PW36 : Shivakumar S/o Krishnareddy PW37 : Suresh S/o Srinivas Shetty PW38 : Bhalavanth Singh S/o Sardhar Sarath PW39 : Usharani W/o Narayanaswamy PW40 : Gurusiddappa S/o Mariyappa PW41 : Shivaswamy S/o Late Beeregowda PW42 : Subramani S/o Kuppaswamy PW43 : Ravikumar S/o Rangappa PW44 : Venkatarama S/o Late. Lakshman PW45 : Mubarakh S/o Kudarath Saab PW46 : Shivaraj S/o Ramu PW47 : Ravi.D. S/o Baburao PW48 : Rajesh.K. S/o Kuppaswamy PW49 : Revannasiddappa S/o Gurulingappa PW50 : Mayanna S/o Thamaiah PW51 : Shivaraj S/o Kariyappa PW52 : Muniyellappa S/o Muniyappa PW53 : Subhash S/o Late Chengappa PW54 : Latha W/o Mahadevappa PW55 : Nagaraj S/o Late.Muniswamappa 182 SC No.1011/2010 PW56 : Chandrashekar S/o Shivanna PW57 : Manoj S/o Shyamsundar PW58 : Shekhar S/o Kemapaiah PW59 : Mukhesh S/o Hanuman PW60 : Shashidhar.S.D. S/o Devaraj PW61 : Malathesh S/o Kalegowda PW62 : Jayasimha S/o Lakshminarasaiah PW63 : Shivareddy S/o Venkataramareddy PW64 : Murthy S/o Shivagangaiah PW65 : B.N.Nyamegowda S/o Nanjappa List of witnesses examined for the accused:-
DW1 : Venkatesh S/o Govindappa DW2 : Janardhan S/o Rangachari List of documents marked for the prosecution:-
Ex.P1 : Missing complaint Ex.P1(a) : Signature of PW1 Ex.P1(b) : Signature of PW60 Ex.P2 : Complaint Ex.P2(a) : Signature of PW1 Ex.P2(b) : Signature of PW55 Ex.P3 : Spot mahazar Ex.P3(a) : Signature of PW1 Ex.P3(b) : Signature of PW22 Ex.P3(c) : Signature of PW55 183 SC No.1011/2010 Ex.P4 : Seizure Mahazar Ex.P4(a) : Signature of PW5 Ex.P4(b) : Signature of PW14 Ex.P4(c) : Signature of PW58 Ex.P5 : Seizure mahazar Ex.P5(a) : Signature of PW6 Ex.P5(b) : Signature of PW7 Ex.P5(c) : Signature of PW58 Ex.P6 : Statement of PW8 Ex.P7 : Statement of PW9 Ex.P8 : Seizure mahazar Ex.P8(a) : Signature of PW10 Ex.P8(b) : Signature of PW65 Ex.P9 : Statement of PW11 Ex.P10 : Notice given to PW12 Ex.P11 : Mahazar Ex.P11(a) : Signature of PW12 Ex.P11(b) : Signature of PW65 Ex.P12 : Complaint Ex.P12(a) : Signature of PW14 Ex.P12(b) : Signature of PW56 Ex.P12(c) : Signature of PW63 Ex.P13 : Inquest panchanama Ex.P13(a) : Signature of PW15 184 SC No.1011/2010 Ex.P13(b) : Signature of PW58 Ex.P13(c) : Signature of PW58 Ex.P14 : Police notice Ex.P14(a) : Signature of PW17 Ex.P15 : Mahazar Ex.P15(a) : Signature of PW17 Ex.P15(b) : Signature of PW65 Ex.P16 : Mahazar Ex.P16(a) : Signature of PW17 Ex.P16(b) : Signature of PW65 Ex.P17 : Receipt issued by Muthoot Finance Ex.P18 : Mahazar Ex.P18(a) : Signature of PW17 Ex.P18(b) : Signature of PW65 Ex.P19 : Mahazar Ex.P19(a) : Signature of PW17 Ex.P19(b) : Signature of PW65 Ex.P20 : Notice Ex.P20(a) : Signature of PW18 Ex.P21 : Mahazar Ex.P21(a) : Signature of PW18 Ex.P21(b) : Signature of PW65 Ex.P22 : Mahazar Ex.P22(a) : Signature of PW18 185 SC No.1011/2010 Ex.P22(b) : Signature of PW65 Ex.P23 : Notice Ex.P23(a) : Signature of PW19 Ex.P24 : Mahazar Ex.P24(a) : Signature of PW19 Ex.P24(b) : Signature of PW26 Ex.P24(c) : Signature of PW65 Ex.P25 : Mahazar Ex.P25(a) : Signature of PW19 Ex.P25(c) : Signature of PW65 Ex.P26 : Mahazar Ex.P26(a) : Signature of PW19 Ex.P26(c) : Signature of PW65 Ex.P27 : Police Notice Ex.P27(a) : Signature of PW20 Ex.P28 : Mahazar Ex.P28(a) : Signature of PW20 Ex.P28(b) : Signature of PW21 Ex.P29 : Statement of PW20 Ex.P30 & 31: Statements of PW21 Ex.P32 : Report of Tahsildar Ex.P32(a) : Signature of PW1 Ex.P32(b) : Signature of PW2 Ex.P32(c) & (d):Signature of PW23 186 SC No.1011/2010 Ex.P32(e) & (f): Signatures of PW24 Ex.P32(g) & (h):Signatures of PW25
Ex.P32(i) to (l): Signatures of PW41 Ex.P33 : Statement of PW25 Ex.P34 : Statement of PW28 Ex.P35 : Mahazar Ex.P35(a) : Signature of PW29 Ex.P35(b) : Signature of PW30 Ex.P35(c) : Signature of PW65 Ex.P36 : Statement of PW31 Ex.P37 : Ledger copy Ex.P38 : Statement of PW32 Ex.P39 & 40: Statements of PW33 Ex.P41 to 43: Statements of PW34 Ex.P44 : Mahazar Ex.P44(a) : Signature of PW36 Ex.P44(b) : Signature of PW65 Ex.P45 : Statement of PW37 Ex.P46 : Statement of PW38 Ex.P47 : Statement of PW38 Ex.P48 : Sketch Ex.P48(a) : Signature of PW40 Ex.P49 : Report of PW41 Ex.P49(a) : Signature of PW41 187 SC No.1011/2010 Ex.P50 : Postmortem Report Ex.P50(a) : Signature of PW43 Ex.P51 : Opinion of PW43 Ex.P51(a) : Signature of PW43 Ex.P52 : Report Ex.P52(a) : Signature of PW44 Ex.P53 : Statement of PW47 Ex.P54 : Letter Ex.P55 : Application Ex.P56 : Driving license Ex.P57 : Call details Ex.P58 : Passport Ex.P59 : Passport Ex.P60 : Letter Ex.P60(a) : Signature of PW51 Ex.P61 : Call details Ex.P61(a) & (b):Signatures of PW51 Ex.P62 : Statement of PW52 Ex.P63 : Letter Ex.P63(a) : Signature of PW53 Ex.P64 : Statement of PW54 Ex.P65 : F.I.R.
Ex.P65(a) : Signature of PW55 Ex.P65(b) : Signature of PW55 188 SC No.1011/2010 Ex.P66 : F.I.R. Ex.P66(a) : Signature of PW56 Ex.P67 to 73: Seven photos Ex.P74 : Mahazar Ex.P74(a) : Signature of PW56 Ex.P74(b) : Signature of PW65 Ex.P75 : Mahazar Ex.P75(a) : Signature of PW59 Ex.P75(b) : Signature of PW65 Ex.P76 to 78: 3 photos Ex.P79 : F.I.R. Ex.P79(a) : Signature of PW60 Ex.P80 : Letter Ex.P81 : Letter Ex.P81(a) : Signature of PW64 Ex.P82 : Application Ex.P83 : Call details Ex.P84 : Portion of voluntary statement of A1 Ex.P85 : Portion of voluntary statement of A7 Ex.P86 : Portion of voluntary statement of A2 Ex.P87 : Portion of voluntary statement of A4 Ex.P88 : Portion of voluntary statement of A6 Ex.P89 : Portion of voluntary statement of A5 Ex.P90 : Portion of voluntary statement of A3 189 SC No.1011/2010 Ex.P91 : Letter written to Sanjaynagar Police Ex.P92 : Mahazar Ex.P92(a) : Signature of PW65 Ex.P93 : B-extract of Omni vehicle Ex.P94 : B-extract of Qualis vehicle Ex.P95 : B-extract of Maruthi vehicle Ex.P96 to 100: Letters Ex.P101 : Copy of notice Ex.P102 : Letter Ex.P103 : Copy of Letter Ex.P104 to 107: Copy of Notices Ex.P108 : Letter Ex.P109 : Letter Ex.P110 : F.S.L. Report Ex.P110(a): Signature of PW65 Ex.P111 : Letter
List of documents marked for the Accused:-
Ex.D1 : Statement of M.R.Hariram
Ex.D2 : Notice
Ex.D3 & 4: Estimated Bills
Ex.D5 to 7: Photos
Ex.D8 : CD
Ex.D9 : Certificate u/s 65B of Evidence Act
190 SC No.1011/2010
Material object marked as per order passed on 22.12.2022:-
MO1 : Diamond ring
MO2 : Ring
MO3 : Janivara
MO4 : Wrist watch
MO5 : Golden chain
MO5(a) : Cut piece of golden chain
MO6 : Golden necklace
MO7 : Golden necklace
MO8 : Golden necklace
MO9 : Golden necklace
MO10 to 14: Golden bangles
MO15 to 17: Golden bracelets
MO18 to 27: Golden chains
MO28 : Blood stained mud
MO29 : Sample mud
MO30 : Shirt = MO65
MO31 : Underwear= MO68
MO32 : Baniyan = MO66
MO33 : Pant belt = MO67
MO34 : Shoes = MO69 & MO70
MO35 : Socks = MO71 & MO7
MO36 : Qualis car
191 SC No.1011/2010
MO37 : Dagger
MO38 : Nokia mobile
MO39 : 184 currency notes of Rs.500/- each MO40 : Mobile phone MO41 : 16 currency notes of Rs.500/- each MO42 : 18 currency notes of Rs.500/- each MO43 : Nokia mobile MO44 : Reliance mobile MO45 : 18 currency notes of Rs.500/- each MO46 : Nokia mobile MO47 : 16 currency notes of Rs.500/- each MO48 : Mobile MO49 : Mobile MO50 : Rs.8,000/- cash MO51 : Brown colour cover MO52 : B.P. Operator MO53 : Burnt mobile phone MO54 : Mobile pouch MO55 : Brown colour purse MO56 : one rupee coins MO57 : one rupee coins MO58 : one silver coin MO59 : one silver coin MO60 : Pieces of rope 192 SC No.1011/2010 MO61 : Ash MO62 : Mud MO63 : Stethoscope MO64 : Cover in which kept golden articles MO64A : Chit contains information given by customer MO64(a) : Signature of PW26 MO64(b) : Signature of CW43/Sharanachar MO65 : Shirt = MO30 MO66 : Baniyan = MO32 MO67 : Pant = MO33 MO68 : Underwear= MO31 MO69 & 70: Shoes = MO34 MO70 & 71: Socks = MO35 MO73 : Maruthi van No.KA-03/C-2729 MO74 : Knife (A.V.PATIL) LXIII Addl. City Civil and Sessions Judge (CCH-64), Bengaluru City.