Karnataka High Court
Kalappa Hanamant Kamakeri vs The State Of Karnataka on 22 December, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.100096/2018
C/W
CRIMINAL APPEAL No.100109/2018
IN CRL.A.No.100096/2018
BETWEEN:
1. KALAPPA HANAMANT KAMAKERI
AGE:59 YEARS,
OCC:AGRICULTURE,
R/O. FARMHOUSE,
METAGUDD,
TAL:MUDHOL,
DIST:BAGALKOT.
2. ANAND JAKKAPPA PUJARI @ GADDADAR
AGE:30 YERS,
OCC:AGRICULTURE,
R/O.METAGUDD,
TAL:MUDHOL,
DIST:BAGALKOT.
... APPELLANTS
(BY SRI.VIJAY K.NAIK, ADVOCATE)
CRL.A.No.100096/2018 C/W
CRL.A.No.100109/2018
2
AND:
THE STATE OF KARNATAKA,
THROUGH MUDHOL PS,
DIST:BAGALKOT,
R/BY ADDL.STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD. ... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO CALL FOR THE RECORDS AND TO SET-
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED
14.02.2018 FOR THE OFFENCES PUNISHABLE U/SEC.364, 302,
404, 201 R/W 34 OF IPC, 1860 PASSED IN SESSIONS CASE
NO.59/2013 BY THE I ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT SITTING AT JAMAKHANDI AND ACQUIT THE
APPELLANTS (ACCUSED NOS.1 & 2) OF ALL THE CHARGES.
IN CRL.A.No.100109/2018
BETWEEN
1. IMAMSAB @ HANIF DASTAGIRSAB PASCHAPUR
AGED: 60 YEARS,
OCC: AGRICULTURE,
R/O: ITNAL,
TQ: RAIBAG,
DIST: BELAGAVI.
2 . MAHADEV SIDRAM HULLOLLI
AGED: 45 YEARS,
OCC: AGRICULTURE,
R/O: ITNAL,
TQ: RAIBAG,
DIST: BELAGAVI.
... APPELLANTS
(BY SHRI RAMACHANDRA MALI, ADVOCATE)
CRL.A.No.100096/2018 C/W
CRL.A.No.100109/2018
3
AND
THE STATE OF KARNATAKA
REP. BY MUDHOL PS,
DIST: BAGALKOTE,
NOW REP. BY ITS SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO CALL FOR THE RECORDS AND TO SET
ASIDE THE JUDGEMENT/ORDER OF CONVICTION AND SENTENCE
DATED 14.02.2018 MADE IN S.C.NO.59/2013 PASSED BY THE I
ADDL. DISTRICT AND SESSIONS JUDGE BAGALKOT, SITTING AT
JAMAKHANDI FOR THE OFFENCE PUNISHABLE UNDER SECTION
364, 302, 404, 201 READ WITH SECTION 34 OF IPC AND ACQUIT
THE APPELLANTS OF THE ALLEGED OFFENCES.
THESE APPEALS COMING ON FOR FINAL HEARING ON
14.12.2021 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGEMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:
JUDGMENT
1. Criminal Appeal No.100096/2018 has been filed by accused No.1-Kalappa Hanmanth and accused No.2-Anand Pujari and Criminal Appeal No.100109/2018 has been filed by accused No.3- Imamasab and accused No.4-Mahadev Sidram aggrieved by the judgment of conviction and order CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 4 of sentence passed by the I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, dated 14.02.2018 in Sessions Case No.59/2013.
2. The case of the prosecution is that on 25.03.2013, the complainant-PW.1/CW.1-Basanagowda had filed a complaint stating that his mother Bebakka went missing from 23.03.2013 after she had gone with her brother - accused No.1-Kalappa Hanmanth to the market at Mudhol. At that point of time, she was wearing gold ornaments weighing 20 tholas and carrying mobile phone with two sim cards. On that basis, Cr.No.59/2013 came to be registered by Mudhol police.
3. During the investigation, a burnt body was found in Mullur Ghat Forest, coming within the jurisdiction of Ramdurg police station who registered a case in Cr.No.47/2013 against unknown persons for the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 5 offences punishable under Section 302 of the IPC on the first information submitted by the PW.2/CW.2-Forest Guard.
4. Upon PW.1/CW.1-Basanagowda and other family members coming to know of the same, they had seen the body which had been found in Mullur, recognised the same to be that of the mother of PW.1/CW.1-Basanagowda on which basis further information was given by PW.1/CW.1- Basanagowda, and another case in Cr.No.67/2013 came to be registered for the offences punishable under Sections 364, 302, 404 and 201 read with Section 34 of IPC. The Ramdurg police transferred Cr.No.47/2013 registered by them to the Mudhol police who had registered Cr.No.67/2013.
5. It is thereafter that accused No.1-Kalappa Hanmanth was interrogated, who implicated CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 6 accused No. 2-Anand Pujari, accused No.3- Imamasab and accused No.4-Mahadev Sidram, and on his own statement, gold ornaments, Petrol Can, plastic wire rope and a car were recovered. In pursuance thereto, accused No.2-Anand Pujari, accused No.3-Imamasab and accused No.4- Mahadev Sidram were arrested.
6. On the basis of the information gathered on the strength of the extra-judicial confession made by accused No.1-Kalappa Hanmanth as also other circumstantial evidence, namely the deceased Bebakka having been last seen with accused No.1- Kalappa Hanmanth when they had visited a jewellery shop, as also a utensil shop and thereafter being seen when accused No.1-Kalappa Hanmanth was driving with deceased Bebakka being seated in the passenger seat of his car, when accused No.2-Anand Pujari, accused No.3- CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 7 Imamasab and accused No.4-Mahadev Sidram boarded the car at Ranna Circle, Mudhol.
7. It was contended that there was a motive on the part of accused No.1-Kalappa Hanmanth in causing the death of Bebakka in view of the deceased requesting accused No.1-Kalappa Hanmanth to return the amounts advanced to accused No.1- Kalappa Hanmanth.
8. On 02.07.2013, pursuant to the extra-judicial confession, recovery of the gold ornaments, petrol can, plastic wire rope and the car, a charge-sheet came to be presented by the CPI, Mudhol. On the same day, cognizance was taken and on 25.07.2013, the Additional JMFC, Mudhol, committed the said case to the Sessions Court, Bagalkot, which came to be registered as S.C.No.59/2013 and made over to the I Additional CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 8 District and Sessions Judge, Bagalkot, sitting at Jamkhandi. After hearing both sides, charges were framed against all the accused on 25.11.2015 when all of them denied the charges and claimed to be tried.
9. The prosecution in order to prove its case, in all had examined 24 witnesses as PWs-1 to 24, got marked 66 documents at Ex.P.1 to 66 as also material objects as M.Os.1 to 21. Thereafter, the incriminating evidence against the accused were put across to them when each of them denied all the incriminating evidence while recording their respective statements under Section 313 of Cr.P.C. The accused did not lead any evidence in support of their defence nor did they get any documents marked.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 9
10. After hearing the arguments on behalf of the counsel for the accused and the Public Prosecutor, the trial Court found all the accused guilty of the offences punishable under Sections 364, 302, 404, 201 read with Section 34 IPC and convicted them of the said offences.
11. After hearing the accused, an order of sentence also came to be passed on 14.02.2018 wherein accused Nos.1 to 4 were sentenced to undergo imprisonment for life for the offences punishable under Section 364 read with Section 34 of IPC and fine of Rs.50,000/- each, to undergo imprisonment for life for the offence punishable under Section 302 read with Section 34 IPC and pay fine of Rs.50,000/- each, imprisonment for three years for the offence punishable under Section 404 read with Section 34 IPC and pay fine of Rs.5,000/- each, to undergo imprisonment for 7 CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 10 years for the offence punishable under Section 201 read with Section 34 of IPC and fine of Rs.50,000/- each. It was also ordered that all the sentences shall run concurrently.
12. Apart from the above, the accused were directed to make payment of Rs.1,00,000/- to the complainant-PW.1/CW.1-Basanagowda as compensation under Section 357(B) of the Cr.P.C.
13. It is aggrieved by the aforesaid judgment of conviction and order of sentence, that the appellants are before this Court in the aforesaid two appeals.
14. Shri Vijay K.Naik, learned counsel for the appellants - accused No.1-Kalappa Hanmanth and accused No. 2-Anand Pujari in Crl.A.No. 100096/2018 submits that CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 11 14.1. The first complaint about the deceased being missing is belated inasmuch as even according to the complaint, the deceased went missing between 5.00 to 5.30 p.m. on 23.03.2013 but the complaint was filed only on 25.03.2013 at 21.00 hours.
14.2. Though additional information was furnished on 25.03.2013, the second complaint making allegations against the accused came to be filed on 03.04.2013 at 18.30 hours which is much subsequent to the body being found on 27.03.2013 and this complaint is an afterthought filed with an intention to fix accused No.1-Kalappa Hanmanth as also the other accused due to disputes between accused No.1-Kalappa Hanmanth and the family of the deceased.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 12 14.3. Even as per the missing complaint, accused No.1-Kalappa Hanmanth was assisting the family members in the search of deceased Bebakka between 5.00 to 5.30 p.m. on 23.03.2013 and hence, the question of him being seen going towards Lokapur while taking the deceased along with accused No.2- Anand Pujari, accused No.3-Imamasab and accused No.4-Mahadev Sidram is again a made up story.
14.4. The story of the prosecution contradicts the evidence of PW.7/CW.16-Ramappa as also the statement of CW-17 who has not been examined in the matter.
14.5. There was no motive for accused No.1- Kalappa Hanmanth to have caused the death of the deceased. He relies upon the judgment CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 13 of the Hon'ble Apex Court in Criminal Appeal No.1323/2011 (Sujit Biswas Vs. State of Assam) decided on 28.05.2013 more particularly paragraphs 6 and 7 thereof, which are reproduced hereunder for easy reference:
"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 14 if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).
7. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773, this Court observed as under:
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."
14.6. He also relies on the unreported judgment of the Hon'ble Apex Court in Criminal Appeal No.632/2011 (Vijay Thakur Vs. State of Himachal Pradesh) decided on 19.09.2014, more particularly, paragraphs 13 and 16 thereof which are reproduced hereunder are for easy reference:
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 15 "13. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses.
Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries.
16. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724, this Court observed as under:
"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) "(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 16 that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution." It is settled position of law that suspicion, however strong, cannot take the character of proof." 14.7. As regards the recovery of the ornaments of the deceased, he submits that recovery has occurred in the property which has been sold by accused No.1-Kalappa Hanmanth to CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 17 PW.10/CW.18-Ningappa on 11.12.2012 and thereafter it is PW.10/CW.18-Ningappa and his wife who are in possession of the said property.
14.8. The recovery having occurred much later, the question of the accused No.1 having secreted the same in the said property would not arise. The jewellery has been secreted there and recovered with an intention to fix accused No.1-Kalappa Hanmanth 14.9. The prosecution has not been able to prove any conspiracy on the part of accused Nos.1 to 4. Therefore, the question of them being guilty of the offences alleged would not at all arise.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 18 14.10. On the basis of the above, he submits that the benefit of doubt needs to be extended to the accused and they be acquitted.
15. Sri Ramachandra Mali, learned counsel appearing for Appellants - accused No.3-Imamasab and accused No.4-Mahadev Sidram in Crl.A.No.100109/2018 submits that 15.1. There is no motive on the part of accused No.3-Imamasab and accused No.4-Mahadev Sidram to cause the death of the deceased. 15.2. PW.3/CW.3-Avappa and PW.4/CW.5-Sachin are the panch witnesses for both the spot and seizure panchanama as recorded at Ex.P.7 and 8. He submits that the panchanama has not been recorded properly. There is no continuity as regards where and when the accused went after each spot.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 19 15.3. The seizure has also been made not under these panch witnesses but by Ramdurg police in another crime number.
15.4. As regards the seizure of M.Os.12 to 18 namely the jewellery, he submits that this jewellery had been secreted in the property of accused No.1-Kalappa Hanmanth with which they are not concerned with.
PW.5/CW.14-Rakesh being the goldsmith and the owner of the jewellery shop and PW.6/CW.15-Ramachandra being the owner of the utensil shop have only spoken about the deceased being in the company of accused No.1-Kalappa Hanmanth.
15.5. PW.5/CW.14-Rakesh and PW.6/CW.15- Ramachandra have not spoken about accused Nos.2 to 4. Admittedly, they were not there CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 20 with the deceased at that time and therefore, the question of the last seen theory being made applicable to accused No.2-Anand Pujari , accused No.3-Imamasab and accused No.4-Mahadev Sidram would not at all arise.
15.6. PW.7/CW.16-Ramappa who is stated to be a star witness who has allegedly seen accused No.1-Kalappa Hanmanth driving his Maruti 800 car with the deceased sitting in the passenger seat in the front, when accused No.2-Anand Pujari, accused No.3-Imamasab and accused No.4-Mahadev Sidram boarded the said car at Ranna Circle and thereafter, the car left towards Lokapur.
15.7. In this regard, his submits that PW.7/CW.16- Ramappa does not even know accused No.3- CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 21 Imamasab and accused No.4-Mahadev Sidram. Thus, the question of him identifying accused No.3-Imamasab and accused No.4- Mahadev Sidram would not at all arise. This would also show that the accused are sought to be fixed in the matter and there is no truth in the allegations made against them. 15.8. As regards the medical evidence on record, he submits that there is a contradiction in the medical evidence inasmuch as PW.17/CW.25- Dr.Tanaji, PW.18/CW.26-Dr.Dayanand and PW.23 Dr Chandarashekhar the Scientifical Officer at RFSL, who are the experts have opined that the cause of death is injury to the head while the case of the prosecution is that the deceased had been strangulated. Since the medical evidence did not support the prosecution story, the benefit of doubt has to CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 22 be extended to the accused and they be acquitted.
15.9. PW.7/CW.16-Ramappa is a planted witness to try and make the chain of circumstantial evidence stronger as there being contradictions and omissions in the evidence of PW.7/CW.16-Ramappa, his evidence is untrustworthy and has to be discarded. 15.10. There is no Test Identification Parade which has been conducted in respect of accused No.2-Anand Pujari, accused No.3-Imamasab and accused No.4-Mahadev Sidram, more so, when PW.7/CW.16-Ramappa who is stated to have identified accused No.3-Imamasab and accused No.4-Mahadev Sidram does not know them personally and has only stated to have seen them at Ranna Circle, there being CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 23 no prior acquaintance. Even as per the evidence of PW.7/CW.16-Ramappa, the deceased was traveling with accused No.1- Kalappa Hanmanth of her own will and volition. Hence, the question of an offence of abduction under Section 364 would not at all apply.
15.11. There is no conspiracy which has been proved by the prosecution and no evidence has been led to indicate meeting of minds between accused Nos.1 to 4 for causing the murder of the deceased and therefore, all of them could not have been tried together.
15.12. That on 04.04.2013, the Investigation Officer has carried out too many activities namely recording of statement of witnesses, arrest of accused, recovery of material objects, CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 24 transfer of case from Ramdurg to Mudhol etc., which he submits could not have happened in the regular course of events. The number of acts done on one single day indicates that all of these accused are set up and stage-managed and not true.
15.13. The spot panchnama does not speak of accused No.1-Kalappa Hanmanth having travelled from Bhavani Steel Centre of Ranna circle, picking up accused No.2-Anand Pujari, accused No.3-Imamasab and accused No.4- Mahadev Sidram and proceeding towards Lokapur road. Though a spot mahazar was conducted at i) the place where the accused No.1-Kalappa Hanmanth allegedly picked up the deceased, ii) the place where the accused allegedly murdered the deceased, iii) the place where the dead body was burnt, iv) the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 25 place where the car was parked v) the place where the rope, can and gold ornaments were allegedly hidden by accused No.1- Kalappa Hanmanth. No panchnama was conducted at the place where accused No.2- Anand Pujari, accused No.3-Imamasab and accused No.4-Mahadev Sidram are stated to have boarded accused No.1-Kalappa Hanmanth's car. Thus, accused No.2-Anand Pujari, accused No.3-Imamasab and accused No.4-Mahadev Sidram cannot be implicated in the alleged offence.
15.14. The decision of the Hon'ble Apex Court in STATE OF UTTAR PRADESH VS. RAM BALAK AND ANOTHER reported in (2008) 15 SCC 551 more particularly paragraphs 12, 13 and 15 thereof which are reproduced hereunder for easy reference:
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 26 "12. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows:
"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
13. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows:
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration".
Out of the circumstances highlighted above really none is of any significance. Learned counsel for the appellant-State highlighted that the extra judicial confession itself was sufficient to record the conviction. On a reading of the evidence of CW-1 it is noticed that accused Ram Balak did not a say a CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 27 word about his own involvement. On the contrary he said that he did not do anything and made some statements about the alleged act of co-accused. Additionally, in his examination under Section 313 of Code, no question was put to him regarding his so called extra judicial confession. To add to the vulnerability, his statement is to the effect that after about 11 days of the incidence the extra judicial confession was made. Strangely he stated that he told the police after three days of the incidence about the extra judicial confession. It is inconceivable that a person would tell the police after three days of the incidence about the purported extra judicial confession which according to the witness himself was made after eleven days. Learned counsel for the State submitted that there may be some confusion. But it is seen that not at one place, but at different places this has been repeated by the witness.
15.15. The decision of this Court in Crl.A.No.1128/2016 and connected matters decided on 06.05.2021 more particularly paragraphs 32, 33, 56 and 57 thereof which are reproduced hereunder for easy reference:
"32. In the cross-examination, PW.1 has admitted that the deceased and Accused No.1 are good friends. Till he reached the Police Station, except Accused No.1, he did not know the names of others. Ex.P2-spot mahazar does not indicate the light. In the cross-examination by counsel for Accused No.2, PW.1 had admitted that he came to know from others that the deceased was involved CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 28 in the rowdy activities and further he came to know the names of accused persons only when the Police apprehended and published their names in the newspaper. At the time of the incident, as his eyes were blocked out (blurred) and also due to shock, he was frightened and could not do anything. He further admitted in the cross-examination that the photos reflected in the newspaper were in the Police Station. On 14.11.2011 the Police shown to him 4 to 5 persons, who are unknown persons to him. He also admitted that in the complaint lodged before the Police, he has not given the particulars of the assailants and their identity and the clothes worn by them, but they were wearing pants. He further stated that on 17.11.2011 the Police shown to him 10 persons not mixed with any other persons. He further admitted that he did not know the gang members of Accused No.1.
33. From the evidence of PW.1, it is clear that in the absence of any Test Identification Parade conducted, PW.1 has identified when the accused themselves mentioned their names and when the Police stated that the assailants have been arrested. A careful reading of the examination-in- chief and cross-examination of PW.1, it clearly depicts that PW.1 identified only Accused No.1 and he could not identify the other persons. As admitted by him, they are unknown persons to him. He has identified 4 to 5 persons only after the Police shown to them that those persons are involved and their names and photos published in the newspaper. PW.1 identified 4 to 5 persons not on his personal knowledge, but on account of the paper publication and at the instance of the Police people alone. The entire incident took place within five minutes or so and he came to know the names of other persons only after the Police shown to them and therefore, there is no identification of other accused persons from the personal knowledge of PW.1.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 29
56. Further, the present case, the Test Identification Parade was not conducted by the Investigating Authority and the so called eye witnesses - PWS.1 and 2 have not identified the accused Nos.2 to 11 and in fact they have admitted in the examination-in-chief that they are able to identify Accused Nos.2 to 6 on the basis of the paper publication disclosing the names and photos and the information given by the Police. The purpose of conducting a Test Identification Parade is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye witnesses to the crime.
57. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Rajesh v. State of Haryana, (2021) 1 SCC 118, wherein the Hon'ble Supreme Court held at paragraphs 43, 43.4 and 43.8 as under:
"Refusal to undergo test identification parade (TIP):
43.. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinise the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 30 from the precedents of this Court can be summarised as follows:
XXX XXX XXX XXX 43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.
43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration."
15.16. The sketch/map drawn by PW.13/CW.26-
Assistant Engineer at Exs.P.29 and 30 and those drawn by PW.14/CW.28-Assistant Engineer at Exs.P.54 to 56 do not show the spot where accused No.2-Anand Pujari, accused No.3-Imamasab and accused No.4- Mahadev Sidram are stated to have boarded the car at Ranna circle.
15.17. The voluntary statement of the accused does not come within the purview of Section 27 of CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 31 the Indian Evidence Act inasmuch as when PW.24/CW.33-CPI,Mudhol along with accused Nos. 1 to 4 visited the place where the body was burnt, he did not seize any material from the said place, the seizure having already been done by the Ramdurg police in Cr.No.47/2013, Section 27 would make the voluntary statement admissible to the extent of any recovery made on the basis of such a statement. There being no recovery made, the exception under Section 27 would not apply, therefore bringing into play the bar under Section 26 of the Indian Evidence Act. 15.18. In the statement under Section 313 of the Cr.P.C., of the accused, there is no question put across as regards what the accused have to say, as regards their alleged confession statement at Exs.P. 50 to 53. Without doing CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 32 so, the accused could not have been held guilty applying the exception under Section 27 of the Indian Evidence Act.
15.19. He relies upon the decision of the Hon'ble Apex Court in VIJENDER VS. STATE OF DELHI reported in 1997 (6) SCC 171 more particularly paragraphs 13, 15, 17, 21 and 25 which are reproduced hereunder for easy reference "13. Sequentially stated, the next circumstance related to the recovery of a dead body which was later on identified by P.W. 6 as that of her son Khurshid. Evidence on this point was furnished by S.I. Santosh Kumar (P.W.20), Constable Suresh Kumar (P.W. 18) and Ravinder Singh (P.W. 11), all of Loni Police Station. Their evidence proves that on June 27, 1992 they found the dead body of a young boy aged about 17/18 years lying near the Railway lines in village Banthala. There P.W. 20 got photograph of the dead body taken (Ext. PW20/B), held inquest thereupon and then sent it to Ghaziabad mortuary for post-mortem examination, through PW. 11 and P.W. 18. It is further evidence of PW.s 11 and 18 that On the following day, i.e. June 28, 1992, the relatives of the deceased reached the mortuary and identified the dead body.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 33
15. The next circumstance on which the prosecution relied to establish the complicity of three appellants relates to their arrest and their subsequent conduct. The witnesses to prove this circumstance were Inspector Ram Chander (P.W.
14) and S.H.O. Ram Singh (P.W.19). On perusal of their testimonies we are surprised to find that the trial Judge permitted the prosecution to let in statements made by Jitendra (P.W. 2) to them in utter disregard of the provisions of Section 162 Cr.P.C., which lays down an elementary but fundamental principle to be followed in criminal trial that a statement made before a police officer during investigation cannot be used for any purpose whatsoever; except when it attracts the provisions of Section 27 of Section 32(i) of the Evidence Act. If, however, such a statement is made by a witness examined by the prosecution it may be used by the accused to contradict such a witness, and with the permission of the Court, by the prosecution in accordance with Section 145 of the Evidence Act. To eschew prolixity, we quote below only the relative portion of the evidence of P.W. 13 in this regard :
"One boy named Jeetu @ Jitender met us at Johri Pur and told that Gyanender was having one House at Khajani Nagar which was less known to the people. We then went to Khajani Nagar and reached there at 4.45 p.m. along with Jeetu. Jeetu pointed out to the house and then he went inside the premises and peeped into the room. After peeping inside the room he told the police party that Vijender. Davinder and Mukesh, the three boys, were present inside the room and they were the same persons who had kidnapped and killed the deceased."
(emphasis supplied)
17. Another elementary statutory breach which we notice in recording the evidence of the above CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 34 witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that in consequence of information received from the three appellants on June 30, 1992 they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was recovered on June 27, 1992 and therefore the question of discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case the evidence could not be led in respect thereof.
21. Without going into the probative value of the evidence adduced by the prosecution witnesses and fully replying upon the same if we proceed on the assumption that the above facts and circumstances stand established, it can be said that the prosecution has succeeded in only proving that khurshid was kidnapped. As regards the proof of his murder, the evidence relied upon by the prosecution is that of P.W. 6, who identified the dead body, found by the officers of Loni Police Station near the Railway lines and later on brought to the Ghaziabad nortuary, as that of his son and the report of the post mortem examination, (Ext. PW 21/A) which we have found to be legally inadmissible for non-examination of the doctor who held the autopsy. Even if we accept the post mortem report as a valid piece of documentary evidence, we notice therefrom that it relates to an unknown male aged about 25/30 years, and not to a boy aged 17/18 years. We next get that on the person of the dead body the doctor found three external injuries : one large swelling on the right side of the head, another large swelling over the right side of the jaw and fracture of right parietal bone. The opinion given by the doctor therein is that death was caused by shock and haemorrhage CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 35 as a result of the injuries. In absence of any medical opinion that the injuries were homicidal, accidental death of the victim cannot therefore be ruled out.
25. We are constrained to say that the above observations have been made by the trial Judge casting away the basic principles regarding reception and appreciation of evidence, misreading the evidence. So far as the report of P.W. 5 before the Vigilance Cell is concerned the trial Judge failed to notice that it did not contain the names of the above two appellants, namely, Mukesh and Devinder & Bhinder; and on the contrary therein the names of two other persons, namely, Jeetu and Pappu find place as the miscreants. Indeed, in none of the three reports that PW-5 lodged with the police he mentioned the names of the above two appellants. We hasten to add that even if he had so named it could not have been treated as legal evidence for reasons earlier mentioned. Then again, the trial Judge could not have relied upon the knowledge of P.W, 5 that the appellants were the miscreants as he was not a witness to the kidnap-ping and P.W. 4 did not state that he saw the miscreants and, for that matter, that the appellants were the miscreants. The reliance of the trial Judge on the result of investigation to base his findings is again patently wrong. If the observation of the trial Judge in this regard is taken to its logical conclusion it would mean that a finding of guilt can be recorded against an accused without a trial, relying solely upon the police report submitted under Section 173 Cr.P.C, which is the outcome of an investigation. The result of investigation under Chapter XII of the Criminal Procedure Code is a conclusion that an investigating Officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance thereupon under Section 190 (l) (b) Cr.P.C. and to proceed with the case for trial, where the materials collected during CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 36 investigation are to be translated into legal evidence. The trial Court is then required to base its conclusion solely on the evidence adduced during the trial; and it cannot rely on the investigation or the result thereof. Since this is an elementary principle of criminal law, we need not dilate on this point any further. Equally unsustainable is the trial Judge's reliance upon the statement made by Jeetu (P.W. 2) before the police in view of the express bar of Section 162 Cr.P.C., which we have discussed earlier. Indeed, we find, the trial Judge placed strong reliance on the purported statement made by Jitender before the police that they (the appellants) were hiding and that (they were involved in kidnapping and murder of Khurshid to convict them (emphasis supplied). 15.20. The decision of the Hon'ble Apex Court in DIGAMBER VAISHNAV AND ANOTHER VS. STATE OF CHATTISGARH reported in (2019) 4 SCC 522 more particularly paragraphs 11, 15, 28 and 29 thereof which are reproduced hereunder for easy reference "11. Appearing for the appellants Shri.S.Nagamuthu, learned senior counsel has mainly contended that there was an unexplained delay in reporting the offence. Secondly, the courts below have mainly relied on the testimony of PW-8. PW-8 is a child witness who was present in the house at the time of the incident. She is not a witness to the actual incident. Her testimony has not been corroborated. Therefore, it is risky to rely on uncorroborated identification of the appellants CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 37 at her instance. It is further argued that the evidence of recoveries made under Section 27 of the Indian Evidence Act is also unreliable. The recovery of motorcycle is also unreliable and that the articles recovered are not connected to the crime. The testimony of PW-9 is hearsay and cannot be relied upon by the prosecution. Even the finger print report cannot be relied on. Finally, he submits that the evidence of last seen is insufficient to establish the guilt.
15. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
28. At this stage, it is relevant to notice that there was an unexplained delay in reporting the crime, as rightly pointed out by the learned senior counsel for the appellants. PW-8 in her deposition has stated that when she woke up in the morning, her room was locked from outside. When she shouted from inside, wife of Tekram (Anita) opened the door. This version is further corroborated by PW-10, Dan Bai, who has stated that in the morning at about 3 a.m. on Monday that Anita had opened the door of their house from outside. The children were inside the room. Amrika Bai, Kondi, Subhadra Bai and Shri Bai were lying dead. Though, Anita had opened the door at about 3 a.m., it is unexplained why PW-8 did not inform anyone till 4 pm and the same was also unreported CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 38 by PW-10, even though the police station was at a distance of some six kilometers. This also raises question about veracity of the statement of PW-8, Chandni.
29. The second circumstance relied upon by the prosecution is the evidence of recovery. Under Section 27 of the Indian Evidence Act, it is not the discovery of every fact that is admissible but the discovery of relevant fact is alone admissible. Relevancy is nothing but the connection or the link between the facts discovered with the crime. The recovery of the motorcycle is sought to be relied upon as a circumstance against the appellants. There is nothing on record to show that the motorcycle recovered at the instance of appellant No.1, belongs to him. PW-13, IO, in his cross-examination admits that he does not know whether the appellant No.1 is the owner of the motorcycle. He further admits that no attempts were made by him to enquire about the owner of the vehicle."
15.21. The post-mortem report at Ex.P.33 indicates that the body was burnt with kerosene and some mixed oil whereas Ex.P.66 being the FSL report of the plastic can indicates that it contained petrol residues. Therefore, the said can or the contents of the can could not have been used for burning of the deceased.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 39 15.22. The doctor who took the blood samples of PW.1/CW.1-Basanagowda and CW.8-Rajesh, the sons of the deceased for forwardal of the same to the FSL in order to carry out the DNA profiling has not been examined. In the absence of examination of the doctor who drew the blood samples, the custody of the same cannot be properly ascertained and therefore, the report of the FSL stating that the body belongs to Bebakka the mother of PW.1/CW.1-Basanagowda and CW.8-Rajesh, is completely unfounded.
15.23. He submits that the prosecution has failed to prove all the circumstantial evidence required to prove the guilt of the accused and in this regard he relied upon the decision of the Hon'ble Apex Court in INSPECTOR OF POLICE VS. BALA PRASANNA reported in CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 40 (2008) 11 SCC 645 more particularly paragraphs 11 to 15 thereof which are reproduced hereunder for easy reference:
"11. The conviction based on circumstantial evidence has been highlighted by this Court in various orders of this Court.
12. "9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR 1977 SC 1063); Eradu v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
10. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 41 "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
11. In Padala Veera Reddy v. State of A.P. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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 (4) 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."
12. In State of U.P. v. Ashok Kumar Srivastava (1992) 2 SCC 86), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 42 accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
13. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch- stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
15. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh (AIR 1952 SC 343), it was observed thus:
"10.....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 43 be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 44 (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These aspects were highlighted in State of Rajasthan v. Rajaram (2003(8) SCC 180), State of Haryana v. Jagbir Singh (2003) 11 SCC 261).
13. The main circumstances relied upon by the prosecution relates to the statements of the accused leading to discovery of materials facts, admissible under Section 27 of the Indian Evidence Act, 1872 (in short the 'Evidence Act').
14. Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of this Court. However, in almost all such decisions reference is made to the observation of the Privy Council in Pulukuri Kotayya v. Emperor (AIR 1947 PC 67). It is worthwhile to extract such quoted observation:
"[I] It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to his discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 45 house' does not lead to the discovery of the knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant."
15. "15. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya's case (supra).
16. The various requirements of the section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
(4) The person giving the information must be accused of any offence.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 46 (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
17. As observed in Pulukuri Kottaya's case (supra) it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in a manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC 1788).
15.24. Based on the above he submits that the order of conviction is required to be set aside.
16. Shri V.M.Banakar, learned Additional SPP supports the judgment of conviction and order of sentence. He submits that 16.1. Insofar as conspiracy is concerned though there are no independent witnesses, the surrounding circumstances have been taken CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 47 into consideration by the trial Court and ought to be taken into consideration by this Court, namely the evidence of PW.7/CW.16- Ramappa indicating that he saw accused Nos.1 to 4 travelling with the deceased Bebakka 16.2. The voluntary statements of all the accused at Exs.P.50 to 53 would indicate that there was a conspiracy between them. Accused No.1-Kalappa Hanmanth in his voluntary statement at Ex.P.50 had categorically stated that he had approached accused No.2-Anand Pujari who was known to accused No.3- Imamasab and accused No.4-Mahadev Sidram, and through accused No.2-Anand Pujari, accused No.1-Kalappa Hanmanth had promised to make payment of a sum of Rs.1 lakh each to accused No.3-Imamasab and CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 48 accused No.4-Mahadev Sidram to carry out his work. In this regard, he relies upon the decision of the Hon'ble Apex Court in STATE (NCT OF DELHI) VS. NAVJOT SANDHU reported in 2005 SCC (Cri) 1715, more particularly, paragraphs 145, 146 and 147 which are reproduced hereunder for easy reference:
"145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lakhs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 49 too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 50 Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these preparatory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel.
146. In Mohd. Abdul Hafeez vs. State of Andhra Pradesh [AIR 1983 SC 367], the prosecution sought to rely on the evidence that the appellant along with the other two accused gave information to the IO that the ring (MO 1) was sold to the jeweler PW3 in whose possession the ring was. PW3 deposed that four accused persons whom he identified in the Court came to his shop and they sold the ring for Rs.325/- and some days later, the Police Inspector accompanied by accused 1, 2 and 3 came to his shop and the said accused asked PW3 to produce the ring which they had sold. Then, he took out the ring from the showcase and it was seized by the Police Inspector. The difficulty in accepting such evidence was projected in the following words by D.A. Desai, J. speaking for the Court:
"Does this evidence make any sense? He says that accused 1 to 4 sold him the ring. He does not say who had the ring and to whom he paid the money. Similarly, he stated that accused 1 to 3 asked him to produce the ring. It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the 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 the person".
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 51 There is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law.
147. Another case which needs to be noticed is the case of Ramkishan Mithanlal Sharma vs. State of Bombay [AIR 1955 SC 104]. The admissibility or otherwise of joint disclosures did not directly come up for consideration in that case. However, while distinguishing the case of Gokuldas Dwarkadas decided by Bombay High Court, a passing observation was made that in the said case the High Court "had rightly held that a joint statement by more than one accused was not contemplated by Section 27". We cannot understand this observation as laying down the law that information almost simultaneously furnished by two accused in regard to a fact discovered cannot be received in evidence under Section 27. It may be relevant to mention that in the case of Lachhman Singh vs. The State [1952 SCR 839] this Court expressed certain reservations on the correctness of the view taken by some of the High Courts discountenancing the joint disclosures." 16.3. There is simultaneous recovery of material objects on the basis of the statement made by accused No.1-Kalappa Hanmanth inasmuch as M.Os.12 to 18 have been recovered through accused No.1-Kalappa Hanmanth namely, the jewellery which were worn by the deceased at the time of her CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 52 disappearance in the land belonging to accused No.1-Kalappa Hanmanth as regards which accused No.1-Kalappa Hanmanth had entered into an agreement of sale on 11.12.2012.
16.4. Though the agreement was entered into prior to the incident that occurred on 23.03.2013, the sale deed was executed only in June 2013 in favour of PW.10/CW.18-Ningappa and his wife only after his arrest in the above matter, till then accused No.1-Kalappa Hanmanth had access to the said land since PW.10/CW.18-
Ningappa was not carrying out any agricultural or diary activities in the said land. He submits that in terms of question No.20 in the 313 statement, this aspect of possession has been put across to the accused and it has not been denied by the accused, CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 53 PW.10/CW.18-Ningappa has also supported the above contention and he was not cross- examined by the accused.
16.5. In so far as identification of accused No.3- Imamasab and accused No.4-Mahadev Sidram, he submits that the statement of PW.7/CW.16-Ramappa was recorded on 05.04.2013, accused No.3-Imamasab and accused No.4-Mahadev Sidram having arrested at 6.30 a.m. on 04.04.2013, accused No.3-Imamasab and accused No.4-
Mahadev Sidram were shown to PW.7/CW.16-Ramappa on 05.04.2013, when he recognised and identified accused No.3- Imamasab and accused No.4-Mahadev Sidram and as such, he submits that the identification being done properly by CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 54 PW.7/CW.16-Ramappa cannot be found fault with by the accused.
16.6. As regards the cause of death, he submits that as could be seen from Ex.P.33 namely, the PM report, only small pieces of bones were recovered at the site. The doctor has given his evidence and/or his opinion that the death might have occurred due to the injury to the skull. The accused are trying to make use of their own voluntary statement to contend that the death was by strangulating which is contradictory to the postmortem report which is not permissible. 16.7. He further submits that when there is a contradiction between ocular evidence and medical evidence, ocular evidence has to be preferred. In this regard, he relies upon the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 55 decision of the Hon'ble Apex Court in STATE OF HARYANA VS. BHAGIRATH reported in (1999) 5 SCC 96 more particularly, paragraphs 15 and 16 thereof which are reproduced hereunder for easy reference:
"15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.
16. Looking at the width of the wound on the neck (4.5 cm) and its length (14 cms) a doctor should not have ruled out the possibility of two successive strikes with a sharp weapon falling at the same situs resulting in such a wide incised wound. If the doctor does not agree to the possibility of causing such a wound the doctor should have put-forth cogent reasons in support of such opinion. But PW-7 did not give any such reason for the curt answer given by him that such an injury could not have been caused by two strikes with the same weapon or with different weapons of the same type. We are, therefore, not CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 56 persuaded to entertain any doubt regarding prosecution version on that score."
16.8. He submits that the fact is that the deceased is dead, the burnt body is identified as that belonging to deceased Bebakka who is the mother of PW.1/CW.1-Basanagowda and CW.8-Rajesh, the body being burnt itself would indicate that the death is homicide. Accused No.1-Kalappa Hanmanth in his voluntary statement has stated that they used a rope to strangulate her, but the doctor says that the death is due to a skull injury on the basis of what he found in the pit where the body was burnt. He states that the voluntary statement may be made to mislead the investigators. The fact is that the death has occurred and the accused have been implicated therein. This issue would not assume much significance. He relies upon the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 57 decision of the Hon'ble Apex Court in YOGESH SINGH VS. MAHABEER SINGH reported in (2017) 11 SCC 195, more particularly, paragraph 43 which is reproduced hereunder for easy reference:
"43. The learned counsel appearing for the respondents has then tried to create a dent in the prosecution story by pointing out inconsistencies between the ocular evidence and the medical evidence. However, we are not persuaded with this submission since both the Courts below have categorically ruled that the medical evidence was consistent with the ocular evidence and we can safely say that to that extent, it corroborated the direct evidence proffered by the eye-witnesses. We hold that there is no material discrepancy in the medical and ocular evidence and there is no reason to interfere with the judgments of the Courts below on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai Vs. State of Gujarat, (1983) 2 SCC 174; Mani Ram Vs. State of Rajasthan, 1993 Supp (3) SCC 18; State of U.P. Vs. Krishna Gopal (1988) 4 SCC 302, State of Haryana Vs. Bhagirath, (1999) 5 SCC 96; Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat, (2003) 9 SCC 322; Thaman Kumar Vs. State (U.T. of Chandigarh), (2003) 6 SCC 380; Krishnan Vs. State, (2003) 7 SCC 56; Khambam Raja Reddy Vs. Public Prosecutor (2006) 11 SCC 239; State of U.P. CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 58 Vs. Dinesh (2009) 11 SCC 566; State of U.P. Vs. Hari Chand (2009) 13 SCC 542; Abdul Sayeed Vs. State of M.P., (2010) 10 SCC 259 and Bhajan Singh & Ors. Vs. State of Haryana (2011) 7 SCC 421].
16.9. He refers to the complaint at Ex.P.1 and further statement of the complainant at Ex.P.2. By referring to the same, he submits that the ornaments worn by the deceased have been clearly stated in the complaint and have been reiterated in the further statement so also the clothes which were worn by the deceased at the time of her disappearance. He submits that it is on the basis of the clothes which were found near the pit where the body was burnt that initially the body was identified and later on the same is confirmed by the DNA evidence.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 59 16.10. As regards motive, he submits that PW.1/CW.1-Basanagowda is the son of the deceased Bebakka, PW.8/CW.7-Lakshmikant husband of the deceased, PW.9/CW.10- Ravindra the son-in-law of the deceased, have stated about how accused No.1-Kalappa Hanmanth had from time to time borrowed monies from the deceased, who was looking after the financial matters in the family, amounting to nearly Rs.20 lakhs, which was being demanded by the deceased from accused No.1-Kalappa Hanmanth despite which accused No.1-Kalappa Hanmant did not make payment of the monies. They have also spoken about how the deceased was insisting upon accused No.1-Kalappa Hanmanth to give the share of another brother which accused No.1-Kalappa Hanmanth was not CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 60 willing to do, which had caused friction between the deceased and accused No.1- Kalappa Hanmant and hence, there was sufficient motive on the part of accused No.1- Kalappa Hanmanth to cause the death of the deceased in order to stop the demands for the monies as also the demand for allotment of a share to another brother.
16.11. As regards the last seen theory, he submits that PW.5/CW.14-Rakesh who is a jeweller has categorically stated that the deceased along with accused No.1-Kalappa Hanmanth came to his shop at 3.30 p.m. on 23.03.2013. PW.6/CW.15-Ramachandra who is the owner of the utensil shop has stated that the deceased and accused No.1-Kalappa Hanmanth came to his shop at 4.45 p.m. PW.7/CW.16-Ramappa has stated about him CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 61 having seen the deceased in the company of accused No.1-Kalappa Hanmanth in accused No.1-Kalappa Hanmanth's Maruti 800 car which was being driven by accused No.1- Kalappa Hanmanth and the deceased sitting in the passenger seat as also accused No.2- Anand Pujari, accused No.3-Imamasab and accused No.4-Mahadev Sidram having boarded the vehicle of accused No.1-Kalappa Hanmanth at Ranna Circle and going towards Lokapur.
16.12. As regards the location and involvement of the accused, he submits that M.O.9 being the mobile phone of accused No.1-Kalappa Hanmanth was seized from accused No.1- Kalappa Hanmanth. The Investigating Officer secured the CDRs of the mobile numbers of the deceased as also of accused CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 62 No.1-Kalappa Hanmanth which were marked as Ex.P.60. By referring to page 87, he submits that the deceased was in Mudhol at 17.19 hours on 23.03.2013. Thereafter, there has been no phone calls to the deceased. The accused No.1-Kalappa Hanmanth was in Mudhol at 17.01 hours on 23.03.2013, but at 21.07 hours he was at Batakurki i.e., the place where the body was burnt. Relying on the same, he submits that the location of the mobiles indicates the presence of the accused at the place where the body was burnt. Apart therefrom the ornaments of the deceased were recovered through Accused no.1. In this regard, he relies upon the decision of the Hon'ble Apex Court in SHRI BHAGWAN VS. STATE OF RAJASTHAN reported in (2001) SCC (Cri) 1095, more particularly, CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 63 paragraphs 11 and 12 thereof which are reproduced hereunder for easy reference:
"11. The possession of the fruits of the crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self-inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods are of such kind as in the ordinary course of such things frequently change hands. It is not possible to fix any precise period. This Court has drawn similar presumption of murder and robbery in series of decisions especially when the accused was found in possession of these incriminating articles and was not in a position to give any reasonable explanation. Earabhadrappa @ Krishnappa vs. State of Karnataka (1983) 2 SCC 330 was a case where the deceased Bachamma was throttled to death and the appellant was taken into custody and gold ornaments and other articles were recovered at his instance. This Court observed:
"13. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 64 arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction."
12. In another case reported in (1997) 10 SCC 130 [Mukund vs. State of M.P.], the prosecution case was that in the night intervening 17.1.1994 and 18.1.1994, the appellants trespassed into the residential house of one Anuj Prasad Dubey, committed murders of his wife and their two children and looted their ornaments and other valuable articles. On the next night, the appellants were arrested and interrogated. Pursuant to the statement made by one of the accused, gold and silver ornaments and other articles were recovered. This court, relying on an earlier decision reported in Gulab Chand vs. State of M.P. (1995) 3 SCC 574, observed :
"If in a given case - as the present one - the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder."
16.13. He also relies upon the decision of the Hon'ble Apex Court in CHARANDAS SWAMI VS. STATE OF GUJARAT reported in AIR 2017 SC 1761, more particularly, paragraph CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 65 49 thereof which is reproduced hereunder for easy reference:
"49. As regards the identity of the dead body, the Courts below took note of the evidence of PW57 and PW50. PW50 had informed the local police of Barothi on 4th May, 1998 about the dead body of an unknown person lying at the same spot, later on discovered to be that of Gadadharanandji due to the disclosure made by Accused No. 3. PW57 conducted the post-mortem of the burnt dead body found at Barothi village in Rajasthan. He deposed that the death was homicide. He also deposed about the golden teeth and a key found near the dead body. During the course of investigation, it was revealed that the said key could open the lock put up on the room of the deceased in the Vadtal Temple complex. PW3 corroborated that fact. Further, the identity of the dead body was conclusively established from the DNA testing results of the skin sample of the body which matched with the blood samples of the biological sister of the deceased. Additionally, PW1 also confirmed that he had treated the deceased in 1993 by implanting gold caps on his teeth. That statement was corroborated by the receipts and diary entries of PW1. Indeed, the Appellants have vehemently contended that the said medical records are fabricated because of the discrepancies therein. However, the said discrepancies would not discredit the other evidence regarding the identity of the dead body which has been duly corroborated. This view taken by the High Court, in our opinion, is a possible view. It is certainly not a perverse view. As the identity of the dead body of deceased Gadadharanandji is established, it is a strong circumstance to link it to Accused No.3 who had voluntarily disclosed to the investigating agency about the spot/location where the dead body of the deceased was dumped by him and that CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 66 being the same place in Barothi village in Rajasthan from where the dead body of an unknown person was recovered earlier by the local police."
16.14. By relying upon the aforesaid decisions, he submits that the discovery and recovery of material having been done through accused No.1-Kalappa Hanmanth, the same are admissible.
16.15. Hence, he submits that the prosecution has proved the guilt of the Accused beyond reasonable doubt and the appeal is liable to be dismissed.
17. In reply, Shri Vijay K.Naik, learned counsel for accused/appellants submits that the call details of accused No.1-Kalappa Hanmanth are as relating to Sagar Lodge which is in Bijapur and not in Mudhol. Therefore, accused No.1-Kalappa Hanmanth being at Bijapur could not have been at Mudhol and be CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 67 seen in the company of the deceased at 17.30 hours. By relying upon some of the suggestions put across to PW.1/CW.1-Basanagowda, he submits that all the gold ornaments which were recovered were new and did not belong to the deceased and they had been created only for the purpose of fixing the accused. He submits that the possession of the land had already been handed over on 11.12.2012 by accused No.1-Kalappa Hanmanth to PW.10/CW.18-Ningappa. Hence, he was not in possession of the land, and recovery of any material from a premise of which accused No.1-Kalappa Hanmanth was not in possession cannot be attributed to accused No.1-Kalappa Hanmanth. He therefore submits that the judgment of conviction and order of sentence as against accused No.1-Kalappa Hanmanth and accused No.2-Anand Pujari is to be set aside.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 68
18. Shri Ramachandra Mali, learned counsel appearing for accused No.3-Imamasab and accused No.4- Mahadev Sidram in Crl.A.No.100109/2018 submits that prosecution cannot resort to pick and choose by referring to and relying upon aspects which are in support of the prosecution being Ex.P.33 inasmuch as, the Post Mortem report stating that the death has caused due to an injury to the skull, the case of the prosecution is given a go-bye inasmuch as the prosecution had contended that the deceased had been strangulated using a rope which was recovered as per M.O.10. Relying on the decision of the Hon'ble Apex Court in DIGAMBER VAISHNAV's case he submits that the burden of proof is on the prosecution and does not ever shift to the defence. No order of conviction can be passed on the basis of the conjectures or presumptions. He again reiterates that CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 69 PW.7/CW.16-Ramappa is a planted witness and this time he supports it by contending that PW.7/CW.16-Ramappa's statement was not recorded when the missing complaint was filed. On the basis of all the above, he submits that the order of conviction is required to be set aside and the accused acquitted in the matter.
19. It is in the above background that we are called upon to ascertain whether accused Nos. 1 to 4 are guilty of the offences alleged against them, namely those under Sections 364, 302, 404 and 201 read with Section 34 of IPC, which would require us to re-appreciate the evidence on record.
20. PW-1/CW-1 - Basanagouda @ Milana, son of Lakshmikant Nadagouda @ Hunasikatti, has deposed that CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 70 20.1. PW.8/CW.7-Lakshmikant is his father and deceased Bebakka is his mother. They were residing in Metagudda village in Mudhol Taluk. CW-8/Rajesh and CW-9/Shailashree are also children of PW.8/CW.7-Lakshmikant and deceased Bebakka.
20.2. His sister Shailashree was married and was residing with her husband at Mudhol. The family has about 100 acres of land which is looked after by his father and elder brother. The deceased Bebakka was looking after the financial transactions in the house. 20.3. Accused No.1-Kalappa Hanmanth, who he identifies in the Court, is his uncle i.e., the elder brother of his mother, he has stated that his mother Bebakka had gone to the house of his sister Shailashree at 11.30 a.m. CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 71 on 23.03.2013 to meet her and the younger brother of Bebakka namely, Suresh. When Bebakka did not return home till 5.30 p.m., he had called his sister CW-9/Shailashree and enquired wherein his sister replied that Bebakka had gone to her younger brother Suresh's house and thereafter, she along with her elder brother accused No.1 had gone to a jewellery shop as also to utensil shop and that she would make enquiries.
20.4. PW.1/CW.1-Basanagowda thereafter contacted accused No.1-Kalappa Hanmant who informed him that he had taken his mother to the jewellery shop and after the jewellery shop, he had taken his mother to the utensil shop and left her there.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 72 20.5. It is in this background, that the family members of the deceased started searching for her and upon not finding her, lodged a complaint on 25.03.2013 at 9 pm about his mother having gone missing which came to be marked as Ex.P1.
20.6. He has stated that thereafter he came to know that PW.7/CW.16-Ramappa had informed him about seeing accused No.1- Kalappa Hanmanth taking his mother at 6 p.m. in his Maruti 800 car near Ranna circle when accused No.2-Anand Pujari and two others had boarded the car. When confronted with this, accused No.1-Kalappa Hanmanth had informed PW.1/CW.1-Basanagowda that he had not taken his mother anywhere. Later on, on 03.04.2013, they came to know that 4 to 5 days prior to that date, Ramdurg police CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 73 had found an unidentified burnt body as regards which they had registered a complaint. Hence, on 03.04.2013, they went to Ramdurg police station and upon seeing the clothes which had been seized from the spot, he identified it as belonging to his mother.
20.7. On enquiry, he was informed that there were no ornaments which were found at the place where the body was found. He has also deposed about how his mother had helped accused No.1-Kalappa Hanmanth and had advanced a sum of Rs.20 lakhs from time to time to accused No.1-Kalappa Hanmanth, about how accused No.1-Kalappa Hanmanth had sold about 10 acres of land belonging to him without giving any share to Suresh, the younger brother of his mother and it is for CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 74 this reason that he believed accused No.1- Kalappa Hanmanth along with accused No.2- Anand Pujari, accused No.3-Imamasab and accused No.4-Mahadev Sidram had caused the death of his mother.
20.8. On 04.04.2013, the Investigation Officer had called him to Mudhol Police Station where he was shown accused No.1-Kalappa Hanmanth along with three persons and informed him that they had admitted to have committed the murder of his mother and that the ornaments worn by his mother had been recovered through accused No.1-Kalappa Hanmanth. He identified the said ornaments in Court, saree pieces and bangle pieces recovered by Ramdurg police marked as M.Os.1 and 2 and the ornaments shown in CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 75 the police station were marked as M.Os.12 to
18. 20.9. During the course of cross-examination, PW.1/CW.1-Basanagowda has stated that he did not know about the missing complaint filed by his uncle. He denied that accused No.1-Kalappa Hanmanth had left his mother near Bhavani Utensil Shop on 23.03.2013 at 3.30 p.m. and had gone to Metagudd. He has admitted that all the family members searched for his mother including accused No.1-Kalappa Hanmanth. He has denied that he has got PW.7/CW.16-Ramappa to give false evidence in the case.
20.10. He does not remember as to when CW-17- Timanna (who has not been examined) informed him regarding he having seen CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 76 accused No.1-Kalappa Hanmanth along with other accused taking his mother in the car of accused No.1-Kalappa Hanmanth. Though he admitted that his mother was looking after the financial transactions, he denied that she was lending money for interest and had many enemies in the village.
20.11. He denied that his father had sold 17 acres 39 guntas of land standing in his name to accused No.1-Kalappa Hanmanth for consideration of Rs.80 lakhs for which he had received Rs.40 lakhs but had not executed sale deed in favour of accused No.1-Kalappa Hanmanth.
20.12. He denied that with an intention to cheat accused No.1-Kalappa Hanmanth of Rs.40 lakhs, a false complaint has been lodged CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 77 against accused No.1-Kalappa Hanmanth. On enquiry he has stated that there are no written documents indicating that his mother had lent a sum of Rs.20 lakhs to accused No.1-Kalappa Hanmanth. He denied all other suggestions put to him.
21. PW.2/CW.2- Dayanand Rudrappa Dyamanni, the Forest Guard has deposed that 21.1. He was working as a Forest Guard along with CW-19 in the Dadamangadi Reserve Forest Area. While on patrolling duty on 27.03.2013, they smelt burnt flesh and when they went to the spot, they found burnt bones and at a distance, one skull and a burnt sari piece and bangle pieces and they informed the same to the higher Officers and lodged a CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 78 complaint before the police on the same day at 10 a.m. 21.2. Later on, police had called him to the spot, called two persons going on a motorcycle and drew up panchnama in his presence. When the police seized two pieces of saree, one silver toe ring, two bloodstained stones, some blood stained mud, sample mud, burnt bones, ashes, bangle pieces and some hairs from the spot which were marked as M.Os.1 to 8. Later on, he has given a statement to PW.24/CW.33-CPI,Mudhol, who had called him for enquiry. This witness was not cross- examined.
22. PW-3/CW-3-Avvappa Siddappa Angadi is the witness for the inquest panchnama as per Ex.P.4 conducted by Ramdurg police on 28.03.2013 and CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 79 also witness to the seizure panchnama of M.Os.1 to 8 as per Ex.P.5. He has stated that when he and CW-4/Ramanagouda were going to Ramdurg on Mullur-Ramdurg Road on a motor bike, at about 8.00 a.m., the police stopped, asked them to accompany them for a panchanama and took them to the spot where they found burnt body of a woman. The police took the photographs, prepared panchnama and took their signatures. He has identified the panchnama as Ex.P.4.
23. PW-4/CW-5 - Sachin Ramappa Malali is the mahazar and panch witness for mobile seized from accused No.1 as per Ex.P.7 as also to the five spot panchnamas carried out at five different places, namely Ingalagi cross where the accused is stated to have committed the murder of Bebakka, a spot where Bebakka's body was burnt, when each of the accused individually took the police and CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 80 PW.4/CW.5-Sachin to the spot where the body was burnt. The spot where the Maruti 800 car belonging to accused No.1-Kalappa Hanmanth was parked, when accused No.1-Kalappa Hanmanth opened the door and from the toolbox produced one plastic wire rope measuring about 5 ft. in length which was used to strangulate deceased Bebakka and from the dicky of the vehicle, he has shown one plastic can in which petrol was stocked, which petrol was used to burn the body of deceased Bebakka, then the spot in the cattle shed where the gold ornaments were hidden namely 2 patlis, (big bangles), 4 bilawars (another kind of big bangles), 1 bendawale (earring), 1 Venkataramana locket chain, 1 tali (nuptial knot), 1 suttungura (ring) and 1 Navaratna gold ring. He has stated that thereafter panchnama at Ex.P.8 was drawn up, the rope, can and car were seized CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 81 and marked as M.Os.10 and 11, the jewellery was marked as M.Os.12 to 18, the handkerchief used for tying the ornaments was marked as M.O.19 and the car was marked as M.O.20, photographs of all the spots had been taken and they were identified by him and were marked as Ex.P.7 to Ex.P.23. During the course of cross-examination, he has stated that no one had called him to act as pancha. The police requested him to be a pancha when he was travelling on Ramdurg road. He denied that the panchnama was written by the police sitting in the police station or that he was depositing falsely. He has supported the case of the prosecution.
24. PW-5/CW-14 - Rakesh Rattanchand Ora has deposed that he is running a jewellery shop at Tambakchowk for the last 13 years. The deceased's family as also her maternal family were CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 82 doing business in their shop, the deceased used to come to the shop on several occasions. Suresh Kamakeri, the brother of the deceased Bebakka had come to his shop some time ago , pledged a Venkataramana locket chain and took Rs.50,000/- as it was required for accused No.1-Kalappa Hanmanth's son's marriage.
25. Later on, the said Suresh, brother of the deceased had come to his shop, gave money and took back the chain which was pledged. On the next day, deceased Bebakka and accused No.1-Kalappa Hanmanth came at about 3.45 p.m. to 4 p.m. to his shop, asked the rate of gold, when he asked them how much gold they wanted, they informed that in 2 to 3 days, there was a function and they will come and buy gold. He states that they left the shop to buy some utensils. He has deposed that on the next day, the children of deceased Bebakka CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 83 came to his shop, asked him about whether their mother had come to his shop and he had informed them about the above and one day later, PW.5/CW.14-Rakesh came to know of the missing complaint filed as regards the deceased Bebakka. PW.5/CW.14-Rakesh identified M.O.13 to be the same Venkataramana locket chain which had been pledged in his shop. He has also identified accused No.1-Kalappa Hanmanth who came along with deceased Bebakka to his shop. He has further deposed that he came to know about accused and certain others having been arrested for the murder of deceased Bebakka. He denied having given any statement to the police. At this stage, the prosecutor sought permission of the Court to treat PW.5/CW.14-Rakesh as hostile and cross- examined him. During the course of cross- examination, he denied all suggestions put to him.
CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 84 He also denied all suggestions put to him by the counsel for the accused during his cross- examination.
26. PW-6/CW-15 - Ramachandra Tulajansa Kalpavruksha is the owner of Bhavani Steel Centre, Tambakchowk, Mudhol. He has deposed that he is running Bhavani Steel Centre and that he knows the Nadagouda and Kamkeri families who used to come to his shop to buy utensils. He has stated about how the deceased Bebakka and her brother accused No.1-Kalappa Hanmanth came to his shop and bought two boxes. Later on, they returned the boxes saying that they are small and they wanted big boxes and that they would return in 10 minutes. They came back at 4:45 p.m. and asked for two quintal sized boxes. Since the same could not be fitted in the car, they informed him that they would send somebody to collect the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 85 boxes. He has stated that on the next day, the children of Bebakka came to his shop asking about their mother. He informed them about the above. Later, when the police came, he informed the same to the police also. After 8 or 10 days, he came to know of accused No.1-Kalappa Hanmanth having committed murder of deceased Begakka. He denied having given any statement to the police. Hence, the Public Prosecutor sought permission of the Court to treat him as hostile and cross- examined him. During the course of cross- examination, nothing much was elicited. He however admitted that on 05.04.2013, police had called him to the police station and showed him accused No.1-Kalappa Hanmanth and three other accused and told him that they had committed the murder of Bebakka. He admitted having given a further statement as per Ex.P.25. During the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 86 course of cross-examination by the counsel for the accused, he denied that Bebakka had not purchased any boxes nor exchanged any boxes. He also denied that it is on account of the relationship with PW.1/CW.1-Basanagowda, that he is deposing falsely to implicate accused No.1-Kalappa Hanmanth on account of the business relationship that he had with PW.1/CW.1-Basanagowda.
27. PW-7/CW-16 - Ramappa Timmappa Mareguddi has deposed that he knows the family of Nadagouda of Metagud who owned about 100 acres of land. He has admitted that deceased Bebakka was looking after the money transaction of the family and accused No.1-Kalappa Hanmanth was the elder brother of deceased Bebakka. He has stated that one day at about 5:30 p.m., when he was standing at Ranna Circle at Mudhol, CW-17 (who has not been examined) also came there and while he was CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 87 talking to CW-17, accused No.1-Kalappa Hanmanth and deceased Bebakka came in a Maruti 800 car from Mudhol Shivaji Circle towards Ranna Circle. When the vehicle stopped, accused No.2-Anand Pujari, accused No.3-Imamasab and accused No.4- Mahadev Sidram boarded the car. At the time, CW- 17 tried to go and speak to accused No.1-Kalappa Hanmanth and deceased Bebakka who were his relatives. By the time he could reach the car, the car left and went towards Lokapur. He has stated that after 4 to 5 days, he came to know that Begakka was missing. Hence, he informed PW.8/CW.7-Lakshmikant that he and CW-17 had seen deceased Bebakka and accused No.1-Kalappa Hanmanth on the day she went missing. He has also disposed about coming to know of deceased Bebakka's body being found in Mullur hill and a complaint having been lodged. The police had CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 88 called him to the police station and inquired about the matter. When he informed about what he had seen, he has further stated that later on he came to know that accused No.1-Kalappa Hanmanth had borrowed hand loan from Bebakka and when Bebakka insisted for the return of the amount as also for a share to be given to her younger brother in the family properties, accused No.1-Kalappa Hanmanth being unhappy with Bebakka murdered her with the help of the other accused. During the course of cross-examination by the counsel for the accused, he has admitted that his ancestors used to know the ancestors of PW.1/CW.1- Basanagowda, PW.8/CW.7-Lakshmikant. He has stated that after 10-12 days of the incident, his statement was recorded. He denied that he was deposing falsely to help PW.1/CW.1-Basanagowda and PW.8/CW.7-Lakshmikant.
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28. PW-8/CW-7 Laxmikant Pandappa Nadagoudar @ Hunashikatti has deposed that the deceased is his wife and PW.1/CW.1-Basanagowda, the complainant is his son, they are doing agricultural work and they own 100 acres of land. CWs-1 and 8 are doing agricultural activities and raising sugarcane crops, earning Rs.35 to 40 lakhs in a year and all financial transactions were looked after by his wife. He has identified accused No.1- Kalappa Hanmanth to be his wife's elder brother in Court. He has deposed that financial condition of accused No.1-Kalappa Hanmanth was not good and he had taken loan from his wife amounting to Rs.12,00,000/- for constructing dairy and Rs.8,00,000/- for performing marriage of his son. In all, he had borrowed Rs.20 lakhs from his wife. Though accused No.1-Kalappa Hanmanth had promised to repay the loan when he sells his land, CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 90 it was not done. Accused No.1-Kalappa Hanmanth also did not give a share to the younger brother of the deceased and accused No.1-Kalappa Hanmanth. On 23.03.2013 at about 11 a.m. when his wife deceased Bebakka had been to Mudhol to get back the gold as also to bring boxes for storing grains, he came to know that she had been to the house of her daughter. Thereafter, to the house of her brother Suresh and thereafter, along with accused No.1-Kalappa Hanmanth she went to bring back gold and boxes from the utensil shop. The deceased Bebakka did not return until 6 p.m. He thought she might have gone to meet her friends. When she did not return till night, his children and others tried to search for her, and on the next day evening, his son PW.1/CW.1-Basanagowda had lodged a missing complaint. After that, they came to know about a woman's burnt body being found CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 91 in the forest of Ramdurg. Hence, his daughter, son-in-law PW.9/CW.10-Ravindra and son PW.1/CW.1-Basanagowda had been there and they found bangle pieces and saree pieces and identified the same to be belonging to the deceased. He has deposed similar to PW.1/CW.1-Basanagowda as regards the enquiry made with PW.5/CW.14- Rakesh and PW.6/CW.15-Ramachandra, lodging of complaint etc., He has stated that Suresh/CW-13, younger brother of the deceased and accused No.1-Kalappa Hanmanth had also expired. During the course of cross- examination by the counsel for the accused, he has denied all suggestions put across to him. He has denied that his wife had enmity with lot of people on account of money lending business. He has denied about any agreement of sale being entered into by him with accused No.1-Kalappa Hanmanth for purchase of CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 92 his land for Rs.80,00,000/-. He denied that any false allegations are made or false complaint is filed. He has withstood the test of cross- examination and supported the case of the prosecution.
29. PW-9/CW-10 - Ravindra Venkappa Lendi has deposed that PW.8/CW.7-Lakshmikant is his father-in-law, he has married Shailashree, who is the daughter of PW.8/CW.7-Lakshmikant and deceased Bebakka. He has also stated about the ownership of land by the deceased family, financial transaction being looked after by the deceased, deceased having lent Rs.12 lakhs to accused No.1- Kalappa Hanmanth for dairy business and thereafter, several small sums of monies being borrowed totalling upto Rs.20 lakhs as also about borrowing of money at the time of marriage of the son of accused No.1-Kalappa Hanmanth. He has CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 93 also disposed about how the deceased had come to Mudhol and gone to jewellery shop and utensil shop and had been missing, about the search being carried out, lodging of complaint, information furnished by PW.7/CW.16-Ramappa, tracing of the burnt body, identification of the body etc., During the course of cross-examination, he has denied that his mother-in-law used to lend money to public on interest. He has denied that PW.7/CW.16-Ramappa and CW-17 have deposed falsely in view of the transaction between themselves and PW.6/CW.15-Ramachandra as also PW.9/CW.10-Ravindra. He has withstood the test of cross-examination and supported the case of the prosecution.
30. PW-10/CW-18 - Ningappa Appanna Batakurki is stated to be the purchaser of the land belonging to accused No.1-Kalappa Hanmanth situated CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 94 in Jaliberi village in terms of an agreement of sale dated 11.12.2012. One agreement having been entered into in his wife's name from accused No.1- Kalappa Hanmanth and another agreement executed in his name and wife's name by Chandrakant Kamakeri, another brother of accused No.1-Kalappa Hanmanth. He has stated that till June 2013, he had not carried out any agricultural activities in the land. It is only in June 2013 that a sale deed was executed in his favour through the Power of Attorney Holder of accused No.1-Kalappa Hanmanth.
31. PW.11/CW.20 and PW.12/CW.22 are the police constables working in Mudhol police station. PW.11/CW.20 carried the FIR to the Magistrate, PW.12/CW.22 accompanied the accused during the time when the spots where various incidents occurred were shown by the accused as also when CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 95 seizure was made. Both of them have withstood the test of cross-examination and supported the case of the prosecution.
32. PW-13/CW-27 - Raghavendra Ranganath Korti, is the Assistant Executive Engineer, PWD, who has drawn the sketch/maps of the various spots. The sketches having been identified as Ex.P.28 and Ex.P.29, he has withstood the test of cross- examination and supported the case of the prosecution.
33. PW-14/CW-28 - Ramesh Channappa, Assistant Executive Engineer, has deposed that he was working as Assistant Engineer in Ramdurg during the relevant time. He along with police constable from Mudhol police station had visited the Mullur hill and prepared a sketch of the spot where the body was burnt which is marked as Ex.P.30. He CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 96 has withstood the test of cross-examination and supported the case of the prosecution.
34. PW 15/CW-21 -Vicharsagar Laxman Nayak, is the one who has arrested the accused on 04.04.2013 in Cr.No.67/2013 of Mudhol police station. He accompanied the accused during the visit of the various spots subject matter of Ex.P.8. He has taken the pictures at Exs.P.20 to 23. He has withstood the test of cross-examination and supported the case of the prosecution.
35. PW-16/CW-23 - Maruthi Mallappa Dyamanagoudar, carried the FIR from Ramdurg police station in Cr.No.47/2013 to the Magistrate. He has supported the case of the prosecution.
36. PW-17/CW-25 - Dr.Tanaji Limbaji Shintre, Medical Officer, has stated that on a requisition being received from CPI, Ramdurg, he accompanied PSI CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 97 of Ramdurg police station and other police staff to the Mullur forest area where the body was found. For the purpose of recovery, he divided the spot into two portions, one as regards the first 20 feet and another beyond 20 feet to 40 feet. He has stated that in the first 20 feet in the centre, there was a ditch measuring 4 ft. X 3 ft. in which burnt bones, ashes, red bangle pieces, green colour saree and one ring were found. The same were collected and handed over to the police constable. He collected the bones at the site in another division of 40 feet. He found jawless skull and found foul smelling brain material in it. Near the skull, he found 10 cms. to 15 cms. long black hair as also bloodstained stones. In another portion, he found the jaws and the upper jaw was broken. He also found a bone of leg which was broken on both sides which was handed over to the police to be CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 98 sent to an expert. He prepared the Post Mortem report as unidentified body and thereafter, on coming to know the name of the deceased her name was entered into in the records. All the items were sent to the Regional Forensic Science Laboratory for their opinion. He has stated that the death of the deceased had occurred due to injuries caused to her head. During the course of cross- examination, he has stated that it is not possible to identify the body belonging to either a male or female without the RFSL report. He has denied that he has prepared a report to suit the prosecution. He has withstood the test of cross- examination and supported the case of the prosecution.
37. PW-18/CW-26 - Dr.Dayanand Gurubasappa Genneue, has deposed that he has examined the bones and parts sent by CPI, Mudhol and he was of the opinion that it belongs to a woman who was CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 99 aged more than 35 years and he has concluded that she might have died due to injuries on the head. He identifies his report as per Ex.P.34. The bones were marked as M.O.21. He has further stated that, it was not possible to say the reason for the death of the deceased exactly on the basis of examination carried out. He has withstood the test of cross- examination, denied the suggestions put to him and supported the case of the prosecution.
38. PW-19/CW-30 - Sanjeev Shivanand Baligar, who was working as PSI in Ramdurg police station has stated that he received the complaint of PW- 2/Dayanand Rudrappa Dyamanni and registered a crime in Cr.No.47/2013 in Ramnagar police station and sent the FIR to the Court.
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39. PW-20/CW-24 - Hanamappa Bhimappa Madinni, has deposed that he has given the requisition to the doctor of the Government Hospital for conducting postmortem. He had accompanied the doctor to Mullur Hill. He has further stated that the doctor had preserved the bones and parts of the body found after giving his report. He has withstood the test of cross-examination and supported the case of the prosecution.
40. PW-21/CW-31 - Holeppagouda Rajendragouda Patil, has proposed that he was working as PSI, Mudhol. He had taken over the case filed pertaining to Cr.No.59/2013 from CW-29 (dead). He has recorded the statement of CWs-7 to 15 as also that of accused No.1-Kalappa Hanmanth. He had sent the requisition to the Superintendent of Police, Bagalkote, to supply call details of the mobile sims of the accused. He has got a search CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 101 carried out for the missing woman from 27.03.2013. He again sent an email to the Superintendent of Police, Bagalkote, on 28.03.2013 for call details. He received the complaint in Cr.No.59/2013 from the complainant PW.1/CW.1-Basanagowda on 03.04.2013 which came to be registered as Cr.No.67/2013 and handed over the case to PW.24/CW.33-CPI,Mudhol for further Investigation. On 04.04.2013, he arrested accused No.1-Kalappa Hanmanth in the farm house as also accused No.2- -Anand Pujari, produced them before CW-33 (PW.24.). During the course of cross-examination, he has denied all suggestions put across to him. He has denied that a false case has been lodged and/or investigated at the instance of PW.1/CW.1-Basanagowda and PW.8/CW.7-Lakshmikant. He has denied about knowing of any dispute as regards sale deed to be CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 102 executed in favour of accused No.1-Kalappa Hanmanth. He has withstood the test of cross- examination and supported the case of the prosecution.
41. PW-22/CW-32- M.Pandurangayya Yanandayya who was CPI, Ramadurg, at the relevant point of time, has deposed that he had witnessed the inquest panchnama. He had submitted the requisition for carrying out post mortem on 02.04.2013. PW.1/CW.1-Basanagowda and his sister Shailashree had come to the police station and when the seized property was shown to them, they identified the saree and the bangles as belonging to their mother. Accordingly, he sent a requisition to the Ramdurg Court to transfer Cr.No.47/2013 of Ramdurg police station to Mulund Court. During the course of cross- examination, he has denied that he had prepared false document to help CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 103 Mudhol police in Cr.No.67/2013. He has denied that PW.2/CW.2-Forest Guard and CW-19 (not examined) have not given any statement before him. He has denied all other suggestions put across to him. He has withstood the test of cross- examination and supported the case of the prosecution.
42. PW-23, Dr.Chandrashekhar Ambegouda was working as a Scientific Officer, RFSL, Bengaluru, at the relevant point of time. He has deposed that he received 4 sealed objects from Mudhol police for DNA testing. He has carried out the same and opined that the bone sent were human in origin and belonged to female sex which was matching to the profile sent to him to that of PW- 1/Basanagouda @ Milan and CW-8/Rajesh Lakshmikant Nadagouda and accordingly, he was of the opinion that the bones belonged to their CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 104 mother. He has also withstood the test of cross- examination and supported the case of the prosecution. He denied various suggestions put across to him.
43. PW-24 - Holebasappa Devaraddi Mudaraddi, who at the relevant point of time was the CPI of Mudhol had taken over the case from CW-31/PW-21- PSI,Mudhol on 03.04.2013 for investigation. On 04.04.2013, the accused were arrested at about 6:30 a.m. and produced before him. During enquiry the accused had admitted the commission of the offence and their guilt. Their voluntary statements have been recorded as per Exs.P.50 to 53 and their respective signature identified as Ex.P.50 (a) to Ex.P.53 (a). Accused No.1-Kalappa Hanmanth and accused No.3-Imamasab have signed and accused Nos.2-Anand Pujari and accused No.4-Mahadev Sidram have put their CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 105 thumb impression. The mobile phone of accused No.1-Kalappa Hanmanth was seized in the presence of PW.4/CW.5-Sachin and CW.6, panchanama to that effect is as per Ex.P.7. He had accompanied the accused for 5 different spot mahazars as also the seizure mahazar in pursuance of which Ex.P.8 was drawn up. He has drawn up the rough sketches of the spots. He sent the accused for medical examination, FIR to the Court, requested for call detail records etc., up to the stage of submitting the charge-sheet. During the course of cross- examination, he has denied all the suggestions put across him. He has reiterated that he has carried out the investigation and supported the investigation carried out by documentary evidence as marked earlier.
44. The evidence as detailed above support the various facets of the case of the prosecution as under:
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45. Identity of the Body: It is sought to be contended that the body found was not that of Bebakka. The bones found in Mullur forest are that belonging to the deceased Bebakka which has been verified and certified by PW. 23-Dr.Chandrashekar, who has conducted the DNA profile examination and opined that the bones which were found belongs to the mother of PW.1/CW.1-Basanagowda and CW.8-Rajesh. The contention raised that the person who drew the blood of PW.1/CW.1- Basanagowda and CW.8-Rajesh which was sent to forensic examination has not been examined, giving raise to probable contamination is also negated by the fact that the blood was drawn in the presence of the magistrate, packed sealed and sent to the RFSL, thus the non examination of the person who drew the blood of PW.1/CW.1- CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 107 Basanagowda and CW.8-Rajesh is immaterial and would not have any consequence.
46. Homicide or Accident: The body of Bebakka having been found in Mullur forest in a burnt condition, it is clear that her death is an homicide, the same is definitely not a suicide and cannot also be an accident taking into consideration the location where the body was found and the condition in which the body was found.
47. Cause of Death: Coming to the minor discrepancies pointed out by Shri Vijay Naik and Sri Ramachandra Mali, learned counsels appearing for the appellants/accused, one of the discrepancies pointed out is that in terms of the postmortem report, the death of the deceased has occurred due to skull injury whereas the case of the prosecution was that the deceased died due to CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 108 throttling/strangulating. This issue would have to be appreciated on the basis of the material available i.e., the remnants of the body of the deceased available. As is deposed to by the witnesses, more particularly, PW.17/CW.25- Dr.Tanaji who has deposed that various pieces of the body were in the form of bones which were found in a pit in the Mullur forest area and the skull was found at a different spot after 20 ft. from the pit and the jaw was found at another place. There is no skin or flesh available let alone around the neck of the deceased, since admittedly the neck itself was not available. In such a background, in our considered opinion, it is impossible to ascertain if the death has occurred due to strangulation/throttling by using M.O.10 being the plastic wire rope. The skull being found at another place, it is probable that PW.17/CW.25-Dr.Tanaji CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 109 has mentioned in his Post Mortem report that the death has occurred due to head injury. In the cross- examination, on a suggestion being made that death could have occurred due to any other reason, he has answered in the affirmative. In our considered opinion, the opinion of PW.17/CW.25- Dr.Tanaji is a probable cause of death of the deceased and not the actual cause of the death of the deceased.
48. Though the accurate cause of death would normally be relevant and important in the present facts, whether the death was due to strangulation or due to an injury to the skull pales into insignificance considering that the death has occurred. The decision relied upon by the Addl SPP as regards discrepancy in the ocular evidence and medical evidence in STATE OF HARYANA VS. BHAGIRATH reported in (1999) 5 SCC 96 and CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 110 YOGESH SINGH VS. MAHABEER SINGH reported in (2017) 11 SCC 195 would not be applicable to the present case.
49. Recovery: What is also of importance is that M.O.10, the plastic wire rope which was used to commit the murder and M.O.11 the 10 litres capacity of plastic can which was used to burn the body of the deceased were recovered at the instance of accused No.1-Kalappa Hanmanth in the Silver Maruti 800 car belonging to accused No.1- Kalappa Hanmanth, in as much as the plastic Wire rope was in the tool box and the Plastic petrol can was in the dicky of the said car. M.Os.12 to 18 being the gold ornaments/jewelleries were also recovered at the instance of accused No.1-Kalappa Hanmanth wrapped in a handkerchief M.O.19 from a property which belonged to accused No.1- Kalappa Hanmanth. Though, accused No.1-Kalappa CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 111 Hanmanth has contended that he has sold the property to PW.10/CW.18-Ningappa much prior to the incident, from the evidence it is gathered that accused No.1-Kalappa Hanmanth had entered into an agreement of sale with PW.10/CW.18-Ningappa on 11.11.2012, but the sale was executed only in the month of June, 2013 after the incident. PW.10/CW.18-Ningappa has also categorically stated in his deposition that they were not carrying out any agricultural activities in the said property and there was no one available in the said property or making use of the property. The panchnama at Ex.P.8 has been established by cogent evidence. An independent, third party witness was available who has supported the case of the prosecution. The fact that the gold ornaments and jewellery at M.Os.1 to 18 were recovered through accused No.1-Kalappa Hanmanth in a place belonging to CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 112 accused No.1-Kalappa Hanmanth, where even the Silver Maruti 800 car was parked belonging to accused No.1-Kalappa Hanmanth indicates and establishes the complicity of accused No.1-Kalappa Hanmanth in the said crime. The recoveries being made and the spot of occurrence having been identified on the basis of simultaneous disclosures made by the accused we are of the opinion that the decision of the Apex court in STATE (NCT OF DELHI) VS. NAVJOT SANDHU reported in 2005 SCC (Cri) 1715 would apply and such recoveries and statement would be admissible.
50. Identity of Accused 3 and 4: It has been contended that the Accused no. 3 and 4 were not known to PW.7/CW.16-Ramappa and as such he could not have identified them without a test identification parade.
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51. From the evidence on record it can be gathered that accused No.3-Imamasab and accused No.4- Mahadev Sidram were arrested at 6.30 a.m. on 04.04.2013 and shown to PW.7/CW.16-Ramappa on 05.04.2013 when he identified them as the same persons that he had seen boarding the Maruthi car of Accused No.1 it is only thereafter that the statement of PW.7/CW.16-Ramappa was recorded. In such circumstances there being no dispute as regards the identity, there was no need for a test identification parade to be conducted.
52. It has been contended that accused No.3- Imamasab and accused No.4-Mahadev Sidram are not connected to accused No.1-Kalappa Hanmanth and they have been framed in the matter. The fact remains that while carrying out the panchnama at Ex.P.8, accused No.3-Imamasab and accused No.4-Mahadev Sidram, have also individually CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 114 identified the place where they caused the death of the deceased Bebakka as also the place where the body of the deceased was burnt. Apart from the above, in the proceedings before the trial Court, all the accused were represented by one single lawyer which indicates that there was no conflict of interest between accused Nos.1 to 4. Even in the cross- examination done by the said counsels of the various witnesses who have deposed in the matter, there is no separate suggestion which have been put across to the witnesses on behalf of accused No.3-Imamasab and accused No.4- Mahadev Sidram. All the suggestions and questions have been put across in common for all the accused. Thus we are unable to accept that the accused are not known to each other.
53. Delay in filing complaint: It is contended that though the deceased went missing between 5.00 CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 115 to 5.30 p.m. on 23.03.2013 but the complaint was filed only on 25.03.2013 at 21.00 hours, as such there is a delay which will have an adverse impact on the matter. The evidence on record indicates that the family members were trying to locate the missing Bebakka and were searching for her on the 23rd and 24th, it is only after they were unable to find Bebakka the complaint was filed. Normally when there is a delay in filing the complaint the same could raise a suspicion that the accused are being fixed in the matter. In the present case even the delayed complaint was one of missing where there were no allegation which had been made as against the accused, thus it cannot be said that the delay in filing of the complaint was to come up with a story to implicate the accused by creating a story. Thus this delay in our opinion cannot enure to the benefit of the accused.
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54. Motive: PW.1/CW.1-Basanagowda, PW.7/CW.16- Ramappa, PW.8/CW.7-Lakshmikant and PW.9/CW.10-Ravindra have categorically deposed that the deceased had lent an amount of Rs.20 lakhs to accused No.1-Kalappa Hanmanth which despite repeated requests by the deceased, accused No.1-Kalappa Hanmanth did not make payment of. Hence, there was a friction between the deceased and accused No.1-Kalappa Hanmanth. The accused No.1-Kalappa Hanmanth had sold family property and retained the money from such sale with himself and had not given the rightful share to Suresh, another brother of the deceased and accused No.1-Kalappa Hanmanth due to which the deceased was insisting upon accused No.1-Kalappa Hanmanth to either give him a share in terms of money or buy a property as regards his share which accused No.1-Kalappa CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 117 Hanmanth did not want to do. It is an account of the above two issues that their being dispute and friction between the deceased and accused No.1- Kalappa Hanmanth in order to put at rest these issues wanted to get rid of the deceased. These depositions of PWs-1, 7, 8 and 9 establish that there was a motive on the part of accused No.1- Kalappa Hanmanth to cause the death of the deceased. Though a suggestion that the Accused no.1 is sought to be fixed in the case on account of PW.8/CW.7-Lakshmikant having received 40 lakhs from accused no.1 for sale of his land to Accused no.1, which he wanted to knock off has been made Accused no.1 has not produced any document to establish the alleged sale or payment of money, thus this defence or story created to raise a doubt has not been established. This motive is established not on the basis of suspicion but on the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 118 basis of cogent evidence hence we are of the considered opinion that the decision of the Hon'ble Apex Court in Criminal Appeal No.1323/2011 (Sujit Biswas Vs. State of Assam) would not be applicable.
55. Preparation: Accused No.1-Kalappa Hanmanth and accused No.2-Anand Pujari are known to each other. Accused No.3-Imamasab and accused No.4- Mahadev Sidram who were working as coolies and they are known to accused No.2-Anand Pujari. Accused No.2-Anand Pujari introduced accused No.3-Imamasab and accused No.4-Mahadev Sidram to accused No.1-Kalappa Hanmanth who promised to make payment of Rs.1,00,000/- each to accused No.3-Imamasab and accused No.4- Mahadev Sidram to carry out his work. Though these facts are sourced from the voluntary statements made by accused Nos.1 to 4 at CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 119 Exs.P.50 to 53, they are not hit by embargo under Section 26 of the Indian Evidence Act. Since it is on the basis of such voluntary statements that the various recoveries, more particularly, relating to M.Os.10 to 21 were made i.e., the plastic wire rope, petrol can, jewellery and car, these voluntary statements would come within the exception created by Section 27 of the Indian Evidence Act and these statements would establish the preparation on the part of the accused to carry out the crime.
56. Last scene theory: PW.1/CW.1-Basanagowda and PW.8/CW.7-Lakshmikant have deposed that the deceased had at 1130 am gone to the house of her daughter Shaila and thereafter to the house of her brother Suresh from where the deceased had after lunch gone with her brother accused no.1 to the jewellery shop to get her chain, PW.5/CW.14- CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 120 Rakesh, the owner of jewellery shop has deposed that the deceased and accused No.1-Kalappa Hanmanth came to his shop at 3 p.m. and left together, PW.6/CW.15-Ramachandra the owner of the utensil shop has deposed that deceased and accused No.1-Kalappa Hanmanth came to his shop to buy utensils, left the shop and again came back at about 4:45 p.m. bought two big boxes, informed him that they were not able to take the said boxes and that they would send somebody to collect the boxes later in the night. PW.7/CW.16- Ramappa has deposed that he saw the deceased in the passenger seat of the car-M.O.21 belonging to accused No.1-Kalappa Hanmanth at Ranna Circle at 5:30 p.m. when accused No.2-Anand Pujari, accused No.3-Imamasab and accused No.4- Mahadev Sidram also boarded the said car and the car went towards Lokapur. Thus, it is clear that CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 121 from after lunch on the ill-fated day, the deceased was in the company of accused No.1-Kalappa Hanmanth. Except to state that he had left the deceased at the utensil shop, accused No.1- Kalappa Hanmanth has not stated anything else, more so, when the deceased and accused No.1- Kalappa Hanmanth left together from the utensil shop which falsifies the contention that accused No.1 had left the deceased at the utensil shop. This being so from the disposition and evidence tended by PW.6/CW.15-Ramachandra who is an independent third party witness. Further more, the deceased and accused No.1-Kalappa Hanmanth were seen at Ranna Circle at 5:30 p.m. i.e., after leaving the utensil shop of PW.6/CW.15- Ramachandra. Hence, this would also falsify the assertion made by accused No.1-Kalappa Hanmanth that he had left the deceased at the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 122 utensil shop. The CDR marked at Ex.P.60, indicates that the deceased was in Mudhol at 17.19 hours on 23.03.2013, thereafter, there has been no phone calls to the deceased. The accused No.1-Kalappa Hanmanth was in Mudhol at 17.01 hours on 23.03.2013, but at 21.07 hours he was at Batakurki i.e., the place where the body was burnt and later found, this also indicates the presence of Accused no.1 at that place.
57. Circumstantial evidence: The entire case of the prosecution is based on circumstantial evidence. It is therefore required to be seen if the chain of events is categorically established to implicate the accused in the death of Bebakka. As afore observed, there was a friction between the deceased and accused No.1-Kalappa Hanmanth as regards the amounts payable by accused No.1- Kalappa Hanmanth to the deceased as also CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 123 allotting the share to the younger brother of the deceased and accused No.1-Kalappa Hanmanth, in furtherance of with accused No.1-Kalappa Hanmanth was introduced to accused No.3- Imamasab and accused No.4-Mahadev Sidram by accused No.2-Anand Pujari and accused No.1- Kalappa Hanmanth promised to make payment of Rs.1,00,000/- each to accused No.3-Imamasab and accused No.4-Mahadev Sidram for carrying out his work, which would necessarily entail taking care of the deceased by murdering her. As afore observed, on the ill-fated day i.e., 23.03.2013 accused No.1-Kalappa Hanmanth accompanied the deceased to the jewellery shop of PW.5/CW.14- Rakesh and thereafter, to the utensil shop of PW.6/CW.15-Ramachandra and was last seen in the company of the deceased on the way to Lokapur at 530 pm. The panchnama at Ex.P.8 CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 124 which was prepared at the behest of the accused who had shown the route that they took after leaving Ranna Circle, indicates that the accused after crossing Jeergad at the distance of 2 kms, went towards Ingalagi cross and after 1 km, stopped the car and at that place, committed the murder of deceased Bebakka by putting the plastic wire rope around her neck and throttling/strangulating her. Thereafter, they left Lokapur and went towards Batakurki and Ramdurg and at a distance of 4 km from Ramdurg entered Mullur hill, took a kachcha road(unpaved road), when they stopped, accused No.1-Kalappa Hanmanth took the panch witnesses and the police towards a ditch where he informed that they had burnt the deceased Bebakka. Thereafter, each of the accused individually went and identified the said spot. Thereafter, the accused took the police CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 125 and the panch witnesses towards Metagudd village and then to the land belonging to accused No.1- Kalappa Hanmanth subject matter of agreement of sale in favour of PW.10/CW.18-Ningappa, where the accused showed them the spot where the Silver Maruti 800 car belonging to accused No.1- Kalappa Hanmanth was parked, accused No.1- Kalappa Hanmanth opened the door and from the toolbox produced the plastic wire rope of 5 feet in length and from the dicky produced one plastic can having petrol which had been used to commit the offence. Later on, accused No.1-Kalappa Hanmanth took them to the cattle-shed where the gold ornaments wrapped in a handkerchief were secreted. All these items were seized and marked as M.Os.10 to 20. Accused No.1 being in possession of the fruits of the crime namely the jewellery as also the items used for committing the CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 126 murder the decision of the apex court in SHRI BHAGWAN VS. STATE OF RAJASTHAN reported in (2001) SCC (Cri) 1095, would be applicable. The same affords a strong and reasonable ground for the presumption that Accused No.1 in whose possession they are found was the real offender, unless he can account for such possession in some way consistent with his innocence, which he has not.
58. The circumstances above established through evidence lead to an irresistible conclusion of guilt of the accused. All the facts and evidence are consistent, the occurrence of events cannot be explained in any other manner other than the drawing of the conclusion that they are guilty of the offence alleged. The chain of evidence are so complete that they do not leave any reasonable ground for doubt and establish that in all human CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 127 probability the murder of the deceased has been committed by the accused. In view of the above we are of the considered opinion that the decision of the Hon'ble Apex Court in Criminal Appeal No.632/2011 (Vijay Thakur Vs. State of Himachal Pradesh) is not applicable to these facts in as much as the requirements laid down therein are satisfied in the present matter.
59. The manner in which the spots were identified and the items seized through the accused categorically indicate and establishes the chain of events as they occurred. There is absolutely no break or weakness in any of the chain of events and of all them stand established.
60. On a reappreciation of the evidence on record we are of the opinion that the accused are guilty of the offences charged and the trial court has after CRL.A.No.100096/2018 C/W CRL.A.No.100109/2018 128 appreciating all the evidence on record has rightly passed the order of conviction, the sentences awarded is also commensurate with the crimes committed and as such there is no requirement to interfere with such judgement and sentence.
61. In view of the above, we pass the following:
ORDER The Appeals stand Dismissed.
Since accused No.1 is already in custody, the trial Court is directed to secure the presence of accused Nos.2 and 4 to serve the sentence.
Insofar as appellant No.1 (accused No.3) in Criminal Appeal No.100109/2018, the same stood abated on his death.
Sd/-
JUDGE Sd/-
JUDGE Jm/-