Karnataka High Court
Manu @ C N Manukumara vs The State Of Karnataka on 18 January, 2024
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CRL.A No.2034/2017
C/W CRL.A No.2070/2017
CRL.A No.1099/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.2034/2017 (C)
C/W
CRIMINAL APPEAL NO.2070/2017(C)
CRIMINAL APPEAL NO.1099/2018 (C)
CRL. A. NO.2034/2017
BETWEEN:
SUNIL @ SUNIL KUMAR
S/O. DEVARAJU
AGED ABOUT 25 YEARS
R/AT B. CHOLANAHALLI
SHRAVANABELAGOLA HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT ...APPELLANT
Digitally signed
by PRABHU (BY SMT.MELANIE SEBASTIAN, ADVOCATE)
KUMARA
NAIKA
Location: High
CRL. A. NO.2070/2017
Court of
Karnataka
BETWEEN:
MANJA @ MANJUNATHA @ PAPANNI
S/O BOREGOWDA
AGED ABOUT 23 YEARS
R/O HOSAKEREHALLI
BANASHANKARI
VENKATAPPA EXTENSION
BENGALURU ... APPELLANT
(SRI.PRABHUGOUD B TUMBIGI, ADVOCATE)
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CRL.A No.2034/2017
C/W CRL.A No.2070/2017
CRL.A No.1099/2018
CRL. A. NO.1099/2018
BETWEEN:
1. MANU @ C N MANUKUMARA
S/O NAGARAJA
AGED ABOUT 40 YEARS
R/AT HOSAKEREHALLY
BANASHANKARI 3RD STAGE
BENGALURU - 560 070
2. MANJA @ MANJEGOWDA @ KRISHNEGOWDA
S/O NINGEGOWDA @ KULLEGOWDA
AGED ABOUT 38 YEARS
R/AT: B CHOLENAHALLI VILLAGE
SHRAVANABELAGOLA HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT - 34 ... APPELLANTS
(SRI.PRATHEEP K C, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY HASSAN EXTENSION POLICE
HASSAN DISTRICT
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001 ...RESPONDENT
(COMMON)
(BY SRI.VIJAYAKUMAR MAJAGE, SPP-II A/W
SMT.SOWMYA R, HCGP)
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED
03.10.2017 AND SENTENCE DATED 04.10.2017 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN
S.C.NO.35/2014 - CONVICTING THE APPELLANT/ACCUSED NOS.1 TO
4 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302,201,392
AND 397 READ WITH SECTION 34 OF IPC.
THESE APPEALS COMING ON FOR FURTHER HEARING, THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
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CRL.A No.2034/2017
C/W CRL.A No.2070/2017
CRL.A No.1099/2018
JUDGMENT
Challenging the order of their conviction and sentence, accused Nos.1 to 4 in Sessions Case No.35/2014 on the file of II-Additional District and Sessions Judge, Hassan have preferred this appeal.
2. Particulars of the appeals and the accused concerned therein are as follows:
(i) Crl.A.No.1099/2018 - Accused Nos.1 and 2
(ii) Crl.A.No.2070/2017 - Accused No.3
(iii) Crl.A.No.2034/2017 - Accused No.4 The parties are referred to henceforth according to their ranks before the trial Court.
3. Accused Nos.1 to 4 were prosecuted in Sessions Case No.35/2014 for the charges for the offences punishable under Sections 302, 201, 396, 397 read with Section 34 Indian Penal Code, 1860 (for short 'IPC') and accused No.2 was tried for the additional charge for the offence punishable under Section 75 of IPC on the basis of the charge sheet filed by Hassan Extension Police in Crime No.272/2013 of their Police Station.
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4. The case of the prosecution in brief is as follows:
(i) That accused Nos.1 to 4 were working as driver/hotel supplier in Bengaluru, they had incurred loan and were in financial stress. Therefore, to get rid of their financial stress and to get money by any means, accused Nos.1 to 4 conspired to find out the isolated houses where the women are residing and commit dacoity in such houses. To execute such conspiracy, they decided to go in the car of accused No.4 bearing No.K.A-01-D-7857 in search of isolated houses. As they had no money to execute their plan, accused No.1 lent a sum of Rs.3,000/- by pledging his gold finger ring with PW.12.
(ii) PW.18 was a transport operator. Accused No.1 was working with him as a driver. PW.18 is the relative of the victim Thejaswini who was residing in a house in Chikkahonnenahalli, area of Hassan Town. PW.1 is the husband and PW.15 is the son of the deceased Thejaswini. PW.1 and Thejaswini were residing in that house with their sons PW.15, CW.21 and nephew of PW.1 by name Champaka Dhama. PW.18 during his visits to Hassan, had taken accused No.1 to the house of PW.1 and Thejaswini. Similarly, during the visits of Thejaswini to the house of PW.18 and his visits to the house of the victim, accused No.1 had developed acquaintance with them. He had -5- NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 noticed Thejaswini wearing several gold ornaments. Accused No.1 informed the other accused that they can commit robbery in the house of Thejaswini. Accused with a common intention to commit robbery in the house of PW.1, on 30.09.2013 between 10.30 a.m and 11.00 a.m. went in Car bearing No.KA-01-D-
7857 to the house of Thejaswini and they parked the Car near the house. Accused No.4 remained in the Car and accused Nos.1 to 3 went into the house of Thejaswini. She was alone in the house as her husband and her children had gone to office and school respectively.
(iii) On Thejaswini offering coffee to the accused, accused No.1 gagged her mouth, accused Nos.2 and 3 pushed her to the ground, accused No.3 gripped the legs of Thejaswini and accused No.2 slit her neck with knife carried by them. Then they robbed Mangalya chain from her neck and gold necklace, bangles, Finger Ring, and three silver coins from the almirah of the house. Since Thejaswini was resisting, accused No.1 further slit her neck, they committed her murder and then sped away in the said Car.
(iv) Accused Nos.1 and 2 pledged the robbed jewellery in the shop of PW.10. On PW.15 returning from the school, he noticed Thejaswini dead with homicidal injuries and raised -6- NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 alarm. The neighbors came to the scene of offence. PW.1 who was in Gorur was informed by one Giresh. He came to the scene of offence and filed complaint as per Ex.P1 before PW.27, the Police Sub Inspector of Hassan Extension Police Station. Based on that, he registered FIR as per Ex.P35 and handed over the further investigation to PW.28. PW.28 visited the scene of offence and conducted inquest mahazar and spot mahazar, got conducted postmortem of dead body of the victim. He had deputed PW.27 for tracing the accused.
(v) PW.27 apprehended accused Nos.1 to 4 and produced them before the Investigating Officer. Investigating Officer interrogated the accused and recorded their confessional statements. On the basis of voluntary statements of the accused, the clothes of the deceased and the accused were recovered and they were referred to FSL examination. Investigating Officer on completing the investigation, filed charge sheet against the accused.
5. The trial Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 302, 201, 396, 397 read with Section 34 IPC and additional charge was framed against accused No.2 for the -7- NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 offence punishable under Section 75 of IPC on the ground that he was already convicted in Sessions Case No.20/2003 for the offences punishable under Sections 302 and 201 IPC and was sentenced to imprisonment for life.
6. The accused denied the charges and claimed to be tried. In support of the case of the prosecution, PWs.1 to 29 were examined, Exs.P1 to P66 and MOs.1 to 27 were marked. After the examination of the accused under Section 313 of the Code of Criminal Procedure, 1973, accused No.2 got himself examined as DW.1 and got marked Ex.D1 the judgment in Crl.A.No.1230/2007 passed by this Court acquitting him in S.C.No.20/2003.
7. The trial Court on hearing the parties by the impugned judgment and order held that, though the case was based on the circumstantial evidence, the circumstances set up by the prosecution were proved by the evidence led by the prosecution. So far as the offence under Section 75 IPC, the trial Court held that in view of acquittal of accused No.2 by this Court under Ex.D1, the charge under Section 75 against him does not sustain. The trial Court convicted accused Nos.1 to 4 for the offences punishable under Section 302, 201, 392, 397 -8- NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 read with Section 34 of IPC and sentenced them to various terms of the imprisonment and fine as per the table below:
Sl. Convicted for Sentence Fine in Default No. the Offence Rs. Sentence under Sections
1. 302 read with Life 25,000/-
Section 34 of IPC Imprisonment - 2. 201 read with RI of 4 years 10,000/- Rigorous Section 34 of IPC Imprisonment of one year. 3. 397 read with RI of 7 years 20,000/- Rigorous Section 34 IPC Imprisonment of two years. 4. 392 read with RI of 7 years 20,000/- Rigorous Section 34 IPC Imprisonment of two years.
Accused Nos.1 to 4 have challenged the said judgment and order in the above appeals.
Submissions of Smt. Melanie Sebastian, Sri Prabhugowda B Tumbigi and Sri Pratheep K.C, learned Counsel for the appellants/accused Nos.1 to 4:
8. (i) The case is based solely on the circumstantial evidence. Therefore, the prosecution is required to establish all the circumstances relied on by it by cogent and consistent evidence. The only witness for the last seen circumstance was PW.2, he was a chance witness. His evidence regarding last seen theory was not cogent and consistent. Accused were not known to him earlier. No Test Identification Parade was conducted to get the accused identified through him. Therefore, identification of the accused by PW.2 in the Court should not -9- NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 have been accepted. Even as per the prosecution case, accused No.4 was not involved in actual assault or robbery. If the evidence of PW.2 fails, the case against accused No.4 falls to the ground.
(ii) So far as discovery of the jewellery and belongings of the deceased, PWs.7 and 8 never whispered that the accused made disclosure as required under Section 27 of the Indian Evidence Act,1872 (for short 'Evidence Act') before them nor led them to the place where the material objects were concealed or pledged. Therefore, the said discovery is not in accordance with Section 27 of the Evidence Act.
(iii) Accused No.2 is said to be arrested on 16.10.2013, but recovery was affected on the next day. There was no explanation by the Investigating Officer for that. The evidence with regard to accused No.1 pledging his ring was also not consistent. The pawn receipt with regard to said pledging was not seized. Recovery with respect to other accused was also not established.
(iv) To connect the accused to the crime, the trial Court relied on the bloodstains said to be found on the clothes of the deceased and accused Nos.1 and 2 and that the same was the
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 blood group of the deceased. Investigating Officer did not collect the blood sample of the accused to rule out that, the bloodstains found on the seized article did not belong to accused Nos.1 and 2. Therefore, RFSL report would not have been the conclusive evidence to connect accused Nos.1 and 2 to the crime.
v) As the case was based solely on the circumstantial evidence, unless all the circumstances are proved consistently and cogently the conviction of the accused does not sustain. The trial Court failed to note the missing link in the circumstances. The appreciation of the evidence and conclusion reached by the trial Court are unsustainable. Therefore, the impugned judgment and order are liable to be set aside.
9. In support of their submissions they relied on the following judgments:
i) Thankayyan Vs. State of Kerala1
ii) Sonvir Alias Somvir Vs. State (NCT of Delhi)2
iii) Subramanya Vs. State of Karnataka3
iv) Rajesh and Anr Vs. State of Madhya Pradesh4
v) State of U.P Vs. Satish5 1 1994 SCC(Cri) 1751 2 (2018) 8 SCC 24 3 2022 SCC Online SC 1400 4 AIR 2023 SC 4759 5 (2005) 3 SCC 114
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vi) Prakash Vs. State of Karnataka6
vii) Manoj Parihar and others Vs. State of Jammu and
Kashmir and others7
viii) M.A. Murthy Vs. State of Karnataka8
ix) CBI Vs. R.R Kishore9 Submissions of learned SPP-II:
10. (i) The fact that the victim died homicidal death was proved by the evidence of PWs.1,15,16 and the evidence of other witnesses. The incriminating materials were recovered on the basis of the voluntary statements of accused Nos.1 to 4. The panchas and PW.10-jewelery shop owner supported the prosecution version regarding such recoveries. Accused Nos.1 and 2 had to explain how they possessed the jewellery of the victim, which they did not do. Bloodstains found on the clothes of accused Nos.1 and 2, the victim and the knife i.e., the weapon of offence contained blood group of the deceased. That circumstance is not explained by the accused. PW.2 was independent witness, there was no reason to disbelieve his evidence. He identified the accused during the course of the trial. Merely, because Test Identification Parade was not conducted, his evidence cannot be discarded. The fact of 6 (2014) 12 SCC 133 7 (2022) 14 SCC 72 8 (2003) 7 SCC 517 9 2023 SCC Online SC 1146
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 accused No.1 being acquainted with deceased was established by the evidence of PWs.1,15 and 18. Non mentioning of missing silver coins in the complaint, is not fatal as the complaint is not an encyclopedia.
(ii) The judgments relied by the learned Counsel for the appellants are not applicable to the facts of the case. The Constitutional Bench of the Hon'ble Supreme Court has held that, to invoke Section 27 of the Evidence Act, there need not be formal arrest, the detention of the accused in any other way or he being under surveillance of the police is sufficient. The judgment in Subramanya's case referred to supra cannot be applied with prospective effect. In view of the said Constitutional Bench judgment, Rajesh's case referred to supra cannot be applied.
(iii) Accused Nos.1 and 2 did not raise any defence, they had also suffered injuries and bloodstains were found on their shirts seized by the Investigating Officer. They did not claim that they had any accidental injuries. Therefore, there is no merit in the contention that blood sample of accused Nos.1 and 2 also should have been collected. The charges were proved by the evidence of the prosecution witnesses cogently
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 and consistently. The trial Court considering the same has rightly convicted and sentenced the accused. Therefore, the appeal shall be dismissed.
11. In support of his submission, he relies on the judgment of the Hon'ble Supreme Court in State of Madhya Pradesh Vs. Rameshwar Rathod10
12. Considering the submissions of both side and material on record, the question that arises for the Court's consideration is "Whether the impugned judgment and order of conviction and sentence is sustainable?".
Analysis
13. The accused did not dispute the relationship between PWs.1,15,18 and the deceased. Accused did not dispute that Thejaswini died homicidal death in her house on 30.09.2013 at about 10.30 a.m. Admittedly, there was no eyewitness to the incident. The case is based on the following circumstances:
i) That accused No.1 was visiting the house of PW.1 and Thejaswini and was acquainted with them.10
(1990) 4 SCC 21
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ii) Last seen Circumstance-PW.2 found accused No.4 parking the Car No.K.A-01-D-7857 near the house of Thejaswini and accused Nos.1 to 3 de-boarding from the Car, entering the house of Thejaswini and soon she was found dead.
iii) Recovery of jewellery of the deceased under Ex.P7 on the basis of voluntary statement of accused Nos.1 and 2.
iv) Recovery of bloodstained clothes of accused No.1 and 2 and weapon of offence on the basis of voluntary statement of accused Nos.1 and 2 under the mahazar Ex.P10.
v) Recovery of bloodstained shirt of accused
No.1(MO.24), knife(MO.6), scarf of
deceased(MO.23) at the instance of accused No.1 under Ex.P12.
vi) Recovery of the silver coin at the instance of accused No.1 and recovery of mobile phone of the deceased at the instance of accused No.3 under the mahazar Ex.P20.
vii) Recovery of bloodstained shirt of accused No.2 (MO.22) at his instance under Ex.P10
viii) The medical evidence and evidence of the police witnesses.
Reg. Last seen theory:
14. PW.2 is the contractor from the Hosakoppalu village. He deposed that on 30.09.2013 between 10.15 and 11.00 a.m. he visited Chikkahonnenahalli to supervise the
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 school building construction, the contract of which he had taken. He says that when he was near the school, he found one silver colour Indica Car in front of the house of one Somashekar. Three out of the four got down from the car and went into the house while the other person remained in the Car. He further deposed that at 1.00 p.m., he came to know that the murder has taken place in Chikkahonnenahalli and when he visited the spot, he found that the murder had taken place in the house where those strangers entered. He further deposed that on 19.10.2013, police showed him accused Nos.1 to 4 in the police station and he identified accused No.4 as the driver of the Car, accused Nos.1 to 3 as the persons who entered into the house and identified Car bearing number KA- 01-D-7857(MO.13).
15. In the chief examination of PW2, he states that on seeing the accused, he thought they must be relatives and he along with CW3 proceeded to their work site. In his cross- examination, he admits that when he sighted the accused, he met CW.3 near his house. But CW.3 was not examined. He further stated that when he sighted three persons going into the house of PW.1, he did not suspect them. Though he
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 claimed that he visited scene of offence at 1.00 p.m, on the same day, he admits that he did not reveal to the police about he sighting four persons on that day. He admits in his cross- examination that till he gave statement on 19.10.2013 to the police, he did not inform them about he sighting one person staying in the Car and three persons going into the house of PW.1. Accused were strangers to him. But he does not say on what basis he identified accused No.1 to 4. He admits in his cross-examination that when he visited the police station on 19.10.2013, except accused Nos.1 to 4, the police did not show him any other persons. He says police showed accused and asked to identify them saying that they are arrested in the case. He also says that while he was giving statement before the police, he did not mention the particulars of the persons sighted by him with reference to their physical features or clothes worn by them. He admits that the place he mentioned is a populated area and many vehicles keep passing there and many vehicles are being parked there.
16. The first circumstance which creates doubt about the evidence of PW.2, is about he not informing the police immediately about he sighting accused Nos.1 to 4 near the
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 scene of offence. Secondly, they being strangers to him, he identifying them in the police station. He cannot be called as a witness to the circumstance of seeing the accused and deceased together soon before the death of victim. Since there was unexplained delay on the part of PW.2 in giving the statement with regard to he sighting the accused near scene of offence, being stranger to them and other circumstances stated supra, his evidence does not satisfy the requirement to establish the last seen circumstance.
17. In para 22 of the judgment in Satish's case referred to supra it was held 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 last seen 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
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 accused were seen together by witnesses PWs.3 and 5, in addition to the evidence of PW-2".
(Emphasis supplied) In the light of the above observation of the Hon'ble Supreme Court, the trial Court was not justified in relying on the evidence of PW.2 that he was a witness to the last seen circumstance and his evidence connects the accused to the crime.
Reg. Circumstance of recovery against accused No.3.
18. According to the prosecution, accused No.3 on his voluntary statement -Ex-P59, produced the cell phone of the victim robbed by him. It is further case of the prosecution that, on his arrest, the IO seized mobile phone M.O.26 from his person in the police station under mahazar Ex-P6 in the presence of panchas PW-7 and PW-8. It is no doubt true that PW-7 and PW-8 supported the proceedings under the mahazar Ex-P6. But the material object M.O.26 seized under Ex-P6 at the instance of accused No.3 should be connectable to the crime. Firstly, there was nothing to show that mobile phone M.O.26 allegedly seized from the custody of accused No.3 belonged to the victim nor it was case of the prosecution that the said mobile phone belonged to the accused or was used in
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 commission of the offence. Therefore, the recovery under Ex-P6 nowhere connects accused No.3 to the crime.
19. So far as recovery of M.O.5 cell phone which allegedly belonged to the victim, it was alleged that after robbing the victim, accused No.3 had taken the same and concealed the same near the house of his sister. It is further contended that under Ex.P59-voluntary statement, accused No.3 volunteered to show the place of concealment, led PW-7, PW-8 and Investigating Officer PW-28 to the said place, produced M.O.5 and the same was recovered under Ex-P20. Even though PW.7 and PW.8 supported the proceedings under Ex-P20, as per the prosecution itself, M.O.5 cell phone was not standing in the name of the victim. According to PW-25, PSI who was deputed by PW.28-Investigating Officer to collect the address of the owner of the said phone states that said phone belonged to one Nagamma and as per Ex-P50, the customers' declaration, said cell phone was purchased by one Nagamma. Though it was contended that accused No.3 had taken the same from Nagamma and was using the same, said Nagamma was not examined. Though PW-25 says that he collected the CDRs relating to the aforesaid phone, the call details produced
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 in this case were not accompanied by the certificate as required under Section 65 of the Evidence Act. Therefore, they were inadmissible. Thus, recoveries allegedly effected at the instance of accused No.3 did not connect him to the crime. Therefore, the prosecution failed to prove the alleged recovery circumstance against accused No.3. There is no nexus between the incriminating material seized under those mahazars and the crime.
20. Acceptance of CDRs by the trial court in evidence is contrary to the judgment of the Hon'ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal11. Reg. Circumstance of recovery against accused No.4.
21. According to the prosecution, accused No.4 on his arrest on 16.10.2023, gave voluntary statement as per Ex-P57, volunteering to produce the silver coin of the victim robbed by him and Tata Indica car bearing registration No.KA-01-D-7857 used in commission of the offence and the mobile phone possessed by him at the time of the incident. After recording 11 2020 SCC Online SC 571
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 such voluntary statement, it is contended that accused No.4 produced MTS mobile phone M.O.19 and Silver coin M.O.20 which was in his possession and they were seized under mahazar Ex-P5 in the police station itself.
22. Again PW-7 and PW-8 were the witnesses to the alleged recovery under Ex-P5. The prosecution wanted to claim that the same was used by accused No.4 at the time of the offence. Ex-P52 is said to be the call details of the MTS mobile phone M.O.19. Again same was not accompanied by the certificate as required under section 65B of the Evidence Act. Therefore, that seizure was of no help to the prosecution.
23. So far as recovery of the silver coin, as rightly pointed out by the learned counsel for accused No.3, in the complaint Ex-P1, there was no mention of robbing of the silver coin. The incident had taken place on 30.09.2013. The alleged recovery under Ex-P5 was effected on 16.10.2013. How and why accused No.4 carried the said silver coin for those sixteen days was not clarified. Therefore, the recovery of M.O.19 and M.O.20 was of no help to the prosecution to connect accused No.4 to the crime.
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 Reg. Recovery of Jewelleries from accused.
24. According to the prosecution, accused Nos.2 and 4 were arrested together on 16.10.2013 and accused Nos.1 and 3 were arrested on 17.10.2013. According to the prosecution, on arrest of accused No.1 on 17.10.2013, he produced a gold ring M.O.21 in the police station and that was seized under mahazar Ex-P6 in the presence of PW-7 and PW-8 and the gold ring was appraised through PW-9. PW-7 and PW-8 supported the recovery proceedings under Ex-P6. However, PW-9 the appraiser/gold smith did not support the proceedings under Ex-P6.
25. According to the prosecution, accused No.1 pledged said gold ring with PW-12 Jeweller and raised funds of Rs.3,000/- to execute the crime. Though PW-12 claimed that accused No.1 had pledged the said gold ring on 29.09.2013 for Rs.3,000/- and he got the same redeemed on 03.10.2013, according to him in the pawn receipt, name of accused No.1 was not mentioned. As per PW-13, the alleged pawn receipt- Ex.P19 was returned to accused No.1, but that was recovered by the Investigating Officer. He further says that on the requisition of the police, he seized the carbon copy of receipt of Swastik Bankers under Ex-P18 mahazar. But that receipt
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 pertains to a person by name Shankar. His evidence shows that accused No.1 was not known to him prior to the alleged transaction. In the cross examination, he states that he does not know all the residents of Bengaluru. He admits that at the time of pledging the articles, they take identity proof of the borrower. He further states at the time of pledge transaction in question, he did not try to ascertain whether accused No.1 was Shankar as stated in the receipt. He admits that in Ex-P19, which is a pawn receipt, there is mention of a rule that while redeeming, the identity card of the borrower shall be taken. Ex- P18 is seizure mahazar relating to seizure of Ex-P19 pawn receipt from PW-12. PW-12 in his cross examination states that in Ex-P18, his name is mentioned as Sunil Kumar, but he is Anil Kumar. He further states that the police did not read over the contents of Ex-P18 mahazar to him. The above evidence goes to show that the version of the prosecution that accused No.1 had pledged M.O.21 with PW-12 and raised funds of Rs.3,000/- to execute the crime is shaky and is of no help to the prosecution to connect accused No.1 to the crime.
26. It is further case of the prosecution that under Exs- P58 and P56, the voluntary statements of accused No.1 and 2
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 respectively, they revealed that they have pledged robbed jewellery of the victim with PW-10 Jeweller and showed the place of PW-10 to recover the jewelleries. It is further case of the prosecution that on such statements, accused No.1 and 2 led PW-28 Investigating Officer and PWs-7, 8 and 11 panchas to the shop of PW-10 under the name and style of 'CKS Silver and Gold Jewellery', Bagooru, in Channarayapatna and on enquiry, PW-10 revealed about accused No.2 pledging M.Os.7 to 12- Mangalya chain, gold necklace, gold rings, two pair of bangles and two silver coins, produced them before PW-28 and they were seized under mahazar Ex-P7 in the presence of PW Nos.7, 8 to 11 and those jewels were appraised by PW-9. PW- 7, 8 to 11 supported the proceedings under mahazar Ex-P7.
27. PW-10, the pawn shop owner also consistently deposed that since accused No.2 used to visit his shop, he is acquainted with him and on 30.09.2013, accused No.1 and 2 came to his shop and representing that they need money for some medical emergency of a friend, they pledged the above said gold and silver articles for Rs.1.00 lakh and he paid the amount to accused No.2. He further deposed that on 17.10.2013, the police visited the shop alongwith accused No.1
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 and 2 at 11.30 a.m. and on the request of accused, he produced the jewelleries before the police and PW-9 appraised them, thereafter, they were seized under mahazar Ex-P7. He identified those jewelleries. Even PW-1 and PW-15 identified M.Os.7 to 11. PW-15 alone identified M.O.12 silver coin. Nothing has been elicited in the cross examination of PWs-7, 8, 11 and IO PW-28 to disbelieve the recovery under Ex-P7.
28. PW-9 though admits that he appraised the jewelleries, he states that he appraised them in the police station. He also admits his signature on Ex-P7. Having regard to the consistent evidence of PWs-7, 8, 11 and 28 regarding recovery of M.O.s 7 to 12, the evidence of PW-9 that he appraised M.O.s in the police station does not have any dent regarding recovery of those articles.
29. The other circumstance of recovery relied on by the prosecution against accused Nos.1 and 2 is production of their blood stained clothes under Exs-P10 and P12. According to the prosecution, accused No.2 volunteered to show the place where he has concealed the shirt worn by him at the time of the incident, led IO and PWs-7 and 8 to a lane situated behind his house and took out his shirt M.O.22 and IO seized the same
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 under mahazar Ex-P10 in the presence of PW-7, 8 and 11. Similarly, PW-28 IO says that on giving voluntary statement, accused No.1 led police and above said panchas to Barudalu forest area near Kenchatahalli, Hassan Taluk and took out his blood stained shirt M.O.24, knife M.O.6 and scarf of the victim M.O.23 and produced them before the police and panchas, they were seized under mahazar Ex-P12.
30. According to the prosecution, accused No.1 had carried the blood stained knife wrapping the same in M.O.23 scarf of the victim and had concealed all those items. The proceedings under Ex-P12 and P10 were supported by PW-7, 8 and 11 before the Court. Though it is contended that PW-7, 8 and 11 were witnesses to all the mahazars, therefore, they shall be disbelieved, the evidence on record shows that all the mahazars relating to accused Nos.1 and 2 were effected consecutively in point of time. Therefore, there is nothing unnatural in taking PWs-7,8 and 11 as mahazar witnesses to all the mahazars relating to accused Nos.1 and 2. Nothing is elicited in their cross examination to show that they are in any way interested witnesses or to discredit their evidence.
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31. Learned counsel Sri. Pratheep, K.C., appearing for the appellant in Crl.A.No.1099/2018 submits that as per the evidence of PWs-19 and 28, accused No.2 was arrested on 16.10.2013 at 9.15 p.m. and accused No.1 was arrested on 17.10.2013 at 8.15 a.m. Why recovery was not effected from accused No.2 on the previous day is not stated. So far as accused No.1, it is contended that the recovery mahazars said to have been commenced at 9.25 a.m. as per Ex-P6. Within that short time, arrest formalities, informing relatives of accused No.1 could not have been completed, therefore, the recoveries cannot be said to be in accordance with Section 27 of the Evidence Act namely when accused No.1 was in the police custody. In that regard, he relied on the judgment of the Hon'ble Supreme Court in Rajesh's case referred to supra. Reading of para 21 of the said judgment shows that arrest of the accused in the said case were shown after recovery under Section 27 of the Evidence Act. In that context, it was held in the said case that confession without even arrest does not cover the requirement of Section 27, "accused of an offence". However, said view was clarified by the latest judgment of the Hon'ble Supreme Court in Perumal Raja alias Perumal v. State,
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 Rep. By Inspector of Police12. In that judgment, relying on the earlier Constitution Bench judgment of the Hon'ble Supreme Court in State of Uttar Pradesh v. Deoman Upadhyaya13, the Hon'ble Supreme Court in para 29 of the said judgment held that the expression 'custody' under Section 27 of the Evidence Act does not mean formal custody and that includes any kind of restriction, restraint or even surveillance by the police. It was further held that even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police. Therefore, this Court has to follow the Constitution Bench judgment and the later judgment of the Hon'ble Supreme Court in Perumal Raja's case referred to supra.
32. Relying on the judgment of Subramanya's case referred to supra, learned counsel for accused Nos.1 and 2 submits that to uphold recovery under Section 27 of the Evidence Act, the accused should make their statements before the mahazar witnesses and that should be recorded in the mahazar in the police station, then they should lend to the place of discovery and discovery would be then in accordance 12 2024 SCC Online SC 12 13 AIR 1960 SC 1125
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 with law under Section 27 of the Evidence Act, otherwise, the said discovery is vitiated. Relying on para 87 of the said judgment, he contends that standard operating procedure prescribed for recovery under Section 27 of the Evidence Act, is not followed which reads as follows:-
"87. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:--
(1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody
when he gave information; and
(4) So much of information as relates
distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra : (1976) 1 SCC 828 :
AIR 1976 SC 483.
Two conditions for application : -
(1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered - Earabhadrappa v. State of Karnataka : (1983) 2 SCC 330 : AIR 1983 SC 446."
(Emphasis supplied)
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33. In para 28 of Perumal Raja's case referred to supra, it was further clarified as follows:-
"28. The words "person accused of an offence"
and the words "in the custody of a police officer" in Section 27 of the Evidence Act are separated by a comma. Thus, they have to be read distinctively. The wide and pragmatic interpretation of the term "police custody" is supported by the fact that if a narrow or technical view is taken, it will be very easy for the police to delay the time of filing the FIR and arrest, and thereby evade the contours of Sections 25 to 27 of the Evidence Act. Thus, in our considered view the correct interpretation would be that as soon as an accused or suspected person comes into the hands of a police officer, he is no longer at liberty and is under a check, and is, therefore, in "custody" within the meaning of Sections 25 to 27 of the Evidence Act. It is for this reason that the expression "custody" has been held, as earlier observed, to include surveillance, restriction or restraint by the police."
(Emphasis supplied)
34. In the present case, no-doubt, PWs-7, 8 and 11 did not depose in their evidence that accused Nos.1 and 2 volunteered before them to show the place where incriminating materials were concealed and that is not recorded in Exs-P6, 7, 10 and 12 in the same words. But para 87 of Subramanya's case referred to supra, says that the SOP stated therein are
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 broad conditions for applicability of Section 27 of the Evidence Act. The first condition discovery of fact is only to the effect that discovery of fact should be in consequence with the information received from the accused.
35. To urge that such statements shall be made before the panchas, learned counsel for accused Nos.1 and 2 relied on para 84 of the said judgment wherein referring to the facts of that case, it was held that while the accused were making such voluntary statement, Investigating Officer should have called upon two independent witnesses to the police station itself and on arrival of such witnesses, in their presence, the accused should have been asked to make voluntary statement and exact words uttered by the accused should be incorporated in the first part of the panchanama that the Investigating Officer may draw in accordance with law. But the above statement is not included in the guidelines issued in para 87 of the judgment.
36. Learned SPP-II submits that even assuming that such guidelines is placed, that being the procedural aspect, the judgment cannot be applied retrospectively on the procedural aspect with regard to Exs-P6, P7, 10 and 12.
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37. To substantiate the contention that the judgment has to be applied retrospectively, learned counsel for accused Nos.1 and 2 relied on the Constitution Bench judgment of the Hon'ble Supreme Court in CBI v. R.R. Kishore14. As against that, learned SPP-II submits that the said judgment related to quashing of the legal provision viz., Section 6A of Delhi Special Police Establishment Act, 1946(for short 'DSPE Act') and not on the procedural aspect. So far as on procedural aspect, he relied on judgment of the Hon'ble Supreme Court in State of Madhya 15 Pradesh and Others v. Rameshwar Rathod . As rightly pointed out by learned SPP-II, judgment in R.R. Kishore's case referred to supra related to the question that quashing of Section 6A of DSPE Act operates retrospectively and not on the procedural aspects. Whereas in Rameshwar Rathod's case referred to supra, in para 4 of the judgment, it was held as follows:-
"4. xxxxxxxxx It is well settled that the normal rule of construction is that a provision in a statute is prospective but not retrospective, however, in the case of statutes which are merely declaratory or which relate to only matters of procedure or of evidence, it may have retrospective effect if there are indications to that effect or the manifest purpose compels one to construe the Act as such."
(Emphasis supplied) 14 2023 SCC Online SC 1146 15 (1990)4 SCC 21
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 Reading of the above paragraph shows that normal rule of construction is that a provision in a statute is prospective but not retrospective. It is further held that so far as statute which are merely declaratory or matters of procedure or of evidence, statute may have retrospective effect only if there is indication in the Act.
38. Even in para 26 of the judgment in Manoj Parihar's case referred to supra, it was held that the law declared by the Court will have retrospective effect, if not, otherwise stated to be so specifically. Reading of the judgment in M.A. Murthy's case referred to supra shows the said case is related to service rules. The judgment in M.A.Murthy's case referred to supra do not relate to any procedural aspect. Therefore, said judgments are not applicable to the facts of the present case.
39. There is nothing in Subramanya's judgment referred to supra to show that the Court intended that the guidelines laid down in para 87 of the said judgment were to take effect retrospectively. Therefore, we are not inclined to accept the submission that they are retrospective and seizures under Exs-P6, P7, 10 and 12 are contrary to the said guidelines. The robbed jewellery M.Os.7 to 12 form corpus delecti in the case
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 and once recovery of those articles were held proved, it was for accused Nos.1 and 2 to explain as to how they came in custody of those articles, but, they do not offer any explanation. In view of Section 106 of the Evidence Act, the only inference that can be drawn is that they were robbed from the victim.
40. The evidence produced in the case shows that the blood stained shirt of the accused i.e., M.O.22, M.O.24 and scarf M.O.23 were recovered from the custody of accused Nos.1 and 2 respectively, and the knife M.O.6 was recovered at his instance of accused No.1. Forensic evidence shows that the clothes of the deceased i.e. MOs.14 to 17 were stained with 'O' group blood. It was contended that unless the blood group of the accused was also examined, such matching of the blood group on all those articles is of no benefit to the prosecution. In that connection, learned counsel for accused Nos.1 and 2 relied on Deoman Upadhyaya's referred to supra. Said judgment could have advanced the case of accused Nos.1 and 2, if they had come up with the defence that they had suffered some injuries in some other incident or accident and the blood stains found on their shirts were as a result of such injuries. Absolutely, they do not give any explanation for such blood
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 stains either in the cross examination by the prosecution witnesses or in their examination under Section 313 Cr.P.C. or in the evidence of DW-1 i.e., accused No.2. Therefore, said judgments cannot be justifiably applied to the facts of these cases. In view of the aforesaid discussion, the charge that accused Nos.1 and 2 robbed the victim and in that process, they committed her murder, stood proved beyond reasonable doubt.
41. Sri. Pratheep K.C., learned counsel strenuously contends that, at the most, such evidence may prove the offence under Sections 392 IPC and 397 IPC is not applicable. Reading of Sections 390 and 392 IPC together goes to show that Section 392 IPC is applicable to the simple case of robbery involving extortion i.e., robbing a person keeping in the fear of death and hurt etc., Once a person robbed is subjected to injury by using a deadly weapon, Section 397 of IPC comes into picture. Sections 390 IPC and 397 IPC do not contemplate that there should be five persons involved in the offence. Therefore, the contention that the offence against accused Nos.1 and 2 constitute only offence under Section 392 IPC cannot be countenanced.
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42. In view of the discussion made above, only the appeal of accused Nos.3 and 4 succeeds and the appeals of accused Nos.1 and 2 are liable to be dismissed. Hence, the following:-
ORDER i. Crl.A.No.1099/2018 is hereby dismissed.
ii. Crl.A.No.2070/2017 and Crl.A.No.2034/2017 are hereby allowed.
iii. The impugned judgment of conviction dated 03.10.2017 and order of sentence dated 04.10.2017 in S.C.No.35/2014 passed by II Additional District & Sessions Judge, Hassan so far it relates to accused Nos.1 and 2, is confirmed.
iv. The impugned judgment of conviction dated 03.10.2017 and order of sentence dated 04.10.2017 against accused Nos.3 and 4 is hereby set-aside.
v. Accused Nos.3 and 4 in the said case are hereby acquitted of the charges for the offences punishable under sections 302, 201, 397, 392 IPC r/w 34 IPC.
vi. They shall be set at liberty forthwith, if their detention is not required in any other case.
vii. Order of the trial court with regard to disposal of the properties is maintained.
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NC: 2024:KHC:2475-DB CRL.A No.2034/2017 C/W CRL.A No.2070/2017 CRL.A No.1099/2018 In view of the above, pending I.A.No.1/23 in Crl.A.No.1099/2018 is disposed of.
Sd/-
JUDGE Sd/-
JUDGE PKN,MN List No.: 1 Sl No.: 9