Karnataka High Court
The Registrar General vs Dodda Hanuma S/O Venkatappa on 16 August, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 16TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REFERRED CASE NO.17 OF 2010
C/W
CRIMINAL APPEAL NO.158 OF 2011
C/W
CRIMINAL APPEAL NO.1029 OF 2011
CRL.RC.NO.17 OF 2010:
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001. ... PETITIONER
(BY SRI H.N.NILOGAL, SPL.PP)
AND:
1. DODDA HANUMA
S/O VENKATAPPA
AGED ABOUT 36 YEARS,
DANDUPALYA VILLAGE,
HOSKOTE TALUK, BENGALURU RURAL.
2
2. VENKATESH @ CHANDRA
S/O VENKATASWAMY,
AGED ABOUT 36 YEARS,
DINNUR COLONY, KADUGODI,
BENGALURU RURAL.
3. MUNIKRISHNA @ KRISHNA
S/O VENKATASWAMY,
AGED ABOUT 29 YEARS,
DINNUR COLONY, KADUGODI,
BENGALURU RURAL.
4. NALLATHIMMA
S/O GURABHOVI,
AGED ABOUT 35 YEARS,
CHANNENAHALLI GRAMA,
MUTHOOR POST, PERIYAPATNA TALUK,
MYSURU DISTRICT. ... RESPONDENTS
(BY SRI DINESH KUMAR K.RAO, ADVOCATE FOR R1
SRI HASHMATH PASHA, ADVOCATE FOR R2 AND R3)
THIS CRL.RC IS FILED UNDER SECTION 366(1) OF CR.P.C.
FOR CONFIRMATION OF DEATH SENTENCE AWARDED TO
ACCUSED NO.1)DODDA HANUMA, UTP NO.10176
2)VENKATESHA @ CHANDRA, UTP NO.10175, 3) MUNIKRISHNA
@ KRISHNA, UTP NO.10178, 4) NALLA THIMMA, UTP NO.10177,
BY JUDGMENT DATED 31.8.2010 / 30.09.2010 PASSED IN
S.C.NO.447 OF 2004 ON THE FILE OF THE XXXIV ADDL.CITY
CIVIL AND SESSIONS JUDGE (SPECIAL COURT), CENTRAL
PRISON PREMISES, BENGALURU.
*****
3
CRL.A.NO.158 OF 2011:
BETWEEN:
1. DODDAHANUMA
S/O VENKATAPPA,
AGED ABOUT 43 YEARS,
R/O DANDUPALYA VILLAGE, HOSKOTE TALUK,
BENGALURU RURAL DISTRICT.
2. VENKATESH @ CHANDRA
S/O VENKATASWAMY
AGED ABOUT 43 YEARS,
R/O DINNUR COLONY, KADUGODI, *appeal against
BENGALURU RURAL DISTRICT appellants 2 & 3
Is dismissed
3. MUNIKRISHNA @ KRISHNA vide order
S/O VENKATASWAMY, dt.19.6.2017
AGED ABOUT 37 YEARS,
R/O DINNUR COLONY, KADUGODI,
BENGALURU RURAL DISTRICT. ... APPELLANT
(BY SRI DINESH KUMAR K.RAO, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY JAYALAXMI PURAM
POLICE STATION, MYSURU
AND VIJAYANAGAR POLICE STATION,
MYSURU. ... RESPONDENT
(BY SRI H.N.NILOGAL, SPL.PP)
*****
4
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT DATED 31.08.2010 /
30.09.2010 PASSED BY THE XXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE, (SPECIAL COURT), CENTRAL PRISON,
PARAPPANA AGRAHARA, BENGALURU IN S.C.NOS.447 OF 2004
AND 444 OF 2004 - CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC.
THE APPELLANTS/ ACCUSED ARE SENTENCED TO DEATH. THEY
SHALL BE HANGED BY NECK TILL THEY ARE DEAD AND PAY A
FINE OF RS.5,000/- EACH, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 396 OF IPC. THE APPELLANT/ACCUSED PRAYS
THAT THEY BE ACQUITTED.
*****
CRL.A.NO.1029 OF 2011:
BETWEEN:
1. VENKATESH @ CHANDRA
S/O VENKATASWAMY,
AGED ABOUT 36 YEARS,
R/O DINNUR COLONY,
KADUGODI,
BENGALURU RURAL.
2. MUNIKRISHNA @ KRISHNA
S/O VENKATASWAMY,
AGED ABOUT 29 YEARS,
R/O DINNUR COLONY,
KADUGODI,
BENGALURU RURAL. ... APPELLANTS
(BY SRI HASHMATH PASHA, ADVOCATE)
5
AND:
STATE OF KARNATAKA
BY JAYALAKSHMIPURAM POLICE STATION,
MYSURU. ... RESPONDENT
(BY SRI H.N.NILOGAL, SPL.PP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT DATED 31.08.2010 /
30.9.2010 PASSED BY THE XXXIV ADDL.CITY CIVIL AND
SESSIONS JUDGE (SPECIAL COURT), CENTRAL PRISON,
PARAPPANA AGRAHARA, BENGALURU IN S.C.NOS.447 OF 2004
AND 444 OF 2004 - CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC.
THE APPELLANTS/ ACCUSED NO.2 AND 3 ARE SENTENCED TO
DEATH. THEY SHALL BE HANGED BY NECK TILL THEY ARE DEAD
AND PAY A FINE OF RS.5,000/- EACH FOR THE OFFENCE
PUNISHABLE UNDER SECTION 396 OF IPC. THE
APPELLANTS/ACCUSED PRAYS THEY ACQUITTED.
****
THIS CRL.RC C/W CRL.As COMING ON FOR HEARING
THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
Reference under Section 366(1) of Cr.P.C has been made by the XXXIV Additional City Civil and Sessions Judge (Special Court), Central Prison Premises, Bengaluru, for confirmation of death sentence awarded to Accused No.1) Dodda Hanuma 2) 6 Venkatesh @ Chandra 3) Munikrishna @ Krishna and 4) Nalla Thimma as per the Judgment of conviction and order of sentence dated 31.8.2010 and 30.9.2010 respectively in S.C.447 of 2004. It is registered as Crl.R.C.No.17 of 2010. Aggrieved by the said Judgment, Accused No.1 has preferred Crl.A.158 of 2011 and Accused Nos.2 & 3 have preferred Crl.A.1029 of 2011. All these proceedings are heard together and are disposed off by this common judgment.
2. The case of the prosecution is that the deceased Smt.Susheela, wife of Siddachar was residing along with her husband and 3 children at No.293, Railway Extension, Jayalakshmipuram, Mysuru. On 2-11-2000, at about 9.00 a.m her children had gone to School. Her husband left the house at about 10.00 a.m to attend to his contract work. She was alone in the house. Between 10.00 a.m to 2.00 p.m the accused persons 1 to 10 gained illegal entry to the house, with a common intention to commit dacoity and murder, slit the throat of the 7 deceased with a knife and robbed the deceased of a golden chain and a pair of ear studs which she was wearing.
3. At about 2.00 p.m., when her husband, PW.1 came home, he found the deceased lying in a pool of blood. Beside the dead body, there was a knife. Her throat was slit. A Mangalya chain and white stone studded ear rings worn by the deceased were missing. He lodged a report before the Jayalakshmipuram police station as per Ex.P-1. Based on the said report, Crime No.178 of 2000 was registered under Section 302 of IPC against unknown persons.
4. On registering the FIR Ex.P-6, PW.11, the Police Inspector of Jayalakshmipuram Police station, proceeded to the spot, conducted the spot Mahazar as per Ex.P-2 in the presence of panch witnesses and seized the blood stained articles from the spot of occurrence. The inquest Mahazar was drawn as per Ex.P-3. The body was sent for autopsy and it was ascertained that the death took place on account of the slitting of the throat. 8 Though he recorded the statements of number of witnesses, no clue was obtained with regard to the perpetrators of the crime.
5. On 31-1-2001, P.W12 Sri N.Chalapathy, Police Inspector of Banaswadi Police Station, received information that some of the accused who were apprehended in Crime No.353 of 1999 of Banaswadi Police Station had escaped from Chittor Jail. On getting this information he proceeded to Echanur village, Tiptur Taluk, Tumakuru District and apprehended accused Nos.1 to 5. He recorded their voluntary statements and based on the voluntary statements of accused Nos. 1, 2 & 4, recovered the gold ornaments belonging to the deceased. He recorded the statements of the jewellers to whom the ornaments were sold by the above named accused and also got the said ornaments identified through P.W1 and P.W3. The further investigation was continued by PW.11.
6. On completing the investigation charge sheet was laid against accused Nos. 1 to 10. The case against accused 9 Nos. 8 & 10 was split up and accused Nos.1 to 7 and 9 faced trial. The trial Court after hearing the accused, framed charges for the offences under Section 396 read with Section 34 of IPC. The accused persons denied the charges. To bring home the guilt of the accused, the prosecution examined 15 witnesses as P.Ws 1 to 15 and admitted in evidence 16 documents as Exs.P-1 to P-18 and the Material Objects at MOs 1 to 16. In the course of evidence of the prosecution, the defence marked Exs.D-1 to D-5.
7. Based on the above evidence, the trial Court convicted accused Nos.1 to 4 for the offence under Section 396 read with 34 of IPC and accused Nos. 5, 6, 7 and 9 were acquitted. On hearing the accused, the trial Court imposed death penalty on accused Nos. 1 to 4, for the reason that accused Nos. 1 to 4 were found involved in as many as 111 offences involving dacoity and murder.
10
8. Being aggrieved by the impugned Judgment of conviction dated 31-8-2010 and the order of sentence dated 30- 9-2010, accused Nos. 2 and 3 have preferred Criminal Appeal No.1029 of 2011 and accused No.1 has preferred Criminal Appeal No.158 of 2011. Accused No.4 has not preferred any appeal against the conviction and the sentence awarded by the Court below. The learned Sessions Judge has made a reference to this Court under Section 366 of Cr.P.C. seeking confirmation of death sentence awarded on respective accused Nos. 1 to 4.
9. We have heard the learned counsel for the appellants/accused and the learned Special Public Prosecutor and have perused the material on record. There is no direct evidence in proof of the participation of the accused persons in the murder of the deceased. The learned Sessions Judge in convicting the accused Nos.1 to 4 has taken into consideration the voluntary statements of accused Nos. 1 to 4 and the recovery of gold ornaments belonging to the deceased at the instance of accused Nos. 1, 2 & 4.
11
10. Sri Hashmath Pasha, the learned counsel appearing for the appellants/accused Nos. 2 & 3 would contend that the trial Court has committed serious error in convicting the accused under Section 396 of IPC. It is the submission of the learned counsel that the evidence produced by the prosecution in proof of the recovery, is far from satisfactory. The panch witness examined by the prosecution is a stock witness. He was taken all the way from Bengaluru. The prosecution has not examined any independent local witness in proof of the recovery of the gold ornaments. In support of this contention, the learned counsel has placed reliance on the decision in the case of STATE OF U.P. vs. ARUN KUMAR GUPTA (AIR 2003 SC 481).
11. Further, the learned counsel would submit that the prosecution has examined the receivers of the gold ornaments namely, P.Ws 13 & 14. The evidence of these witnesses is unreliable and inconclusive. Apart from failing to identify the respective accused, the credibility of these witnesses has been 12 impeached by marking the previous statements of these witnesses wherein they have categorically stated that they did not identify any of the accused. Therefore their evidence could not have been relied on by the trial Court. In support of this plea the learned counsel has placed reliance on the decision in the case of BINAY KUMAR SINGH vs. STATE OF BIHAR reported in (1997(1) SCC 283).
12. Further, the submission of the learned counsel is that, even if the evidence of the above witnesses is accepted, it is settled law that, mere recovery does not prove the participation of the accused in the alleged murder of the deceased. None of the witnesses have stated before the Court that the gold ornaments recovered during the investigation were sold by the accused to PW. 13 or PW. 14. Under the said circumstances, merely on the basis of the recovery evidence the accused could have been convicted under Section 396 of IPC. 13
13. The learned counsel has also highlighted that the recovery evidence produced by the prosecution cannot be given any credence, as it is borne out from the records that these articles were not packed or sealed either at the time of seizure or at the time of production before the Court. Under the said circumstance the possibility of inter meddling with the said articles cannot be ruled out. In this regard the learned counsel has placed reliance on the decision in the case of BABUDAS vs. STATE OF M.P. reported in 2003 SCC (CRI) 1749 to bring home the point that the above lapses seriously affect the case of the prosecution, as a result, the prosecution has failed to prove the recovery connecting the accused to the alleged offence.
14. Alternatively, the learned counsel would submit that, even if the evidence produced by the prosecution in proof of the recovery of the articles is accepted, it would only give rise to the presumption that they are either receivers of the stolen property or the persons who committed the theft. But, it would not lead to the conclusion that any of the accused had committed the 14 murder of the deceased. Therefore, the conviction recorded by the trial Court under Section 396 of IPC cannot be sustained. In support of this argument, the learned counsel has placed reliance on the decision in the case of SANWAT KHAN AND ANOTHER v. STATE OF RAJASTHAN reported in AIR 1956 SC 54 and the case of RAJ KUMAR ALIAS RAJU vs. STATE (NCT OF DELHI) reported in AIR 2017 SC 614.
15. Sri Dinesh Kumar K Rao, learned counsel appearing for appellant/accused No.1 has adopted the arguments of the learned counsel for the appellants/accused Nos. 2 & 3.
16. The learned Special Public Prosecutor has argued in support of the impugned Judgment and would submit that the prosecution has convincingly proved the recovery of the gold ornaments belonging to the deceased, at the instance of the accused. The recovery has been proved by examining PW 13 & 14 and their evidence is corroborated by the panch witness P.W.15 and also the Investigation Officer. These ornaments 15 have been duly identified by PW.1, the husband of the deceased. Moreover, PW.3 the Goldsmith who prepared these ornaments has given convincing evidence before the Court to the effect that he prepared the said gold ornaments and therefore the evidence of PW.3 with regard to the identification of the gold ornaments is unimpeachable. The witnesses examined by the prosecution are independent and disinterested witnesses. No circumstances are brought out in the course of the cross-examination to suggest that these witnesses are interested witnesses. Therefore, the finding recorded by the Court below having been based on legal evidence, there is no reason to interfere with the view taken by the Court below.
17. Before adverting to the rival submissions made at the Bar, it may be appropriate to recapitulate the evidence brought on record.
PW.1 is the husband of the deceased. He reached the spot only after the incident. He lodged the report as per Ex.P1 and 16 identified M.Os.1 to 3 namely a steel glass, blood stained knife and saree of the deceased which were found at the spot of occurrence and also identified the stolen ornaments of the deceased namely M.O.7 mangalya chain and one pair of earrings M.O.8.
PW.2 is the panch witness for the spot mahazar Ex.P2 and also a witness to the inquest mahazar Ex.P6. He identified M.Os.1 to 6 during his evidence.
PW.3 is a goldsmith who has deposed that he prepared the mangalya chain M.O.7 and the earrings M.O.8 as per the requirements of the deceased and he identified them as that of the deceased.
PW.4 is a relative of the deceased. He has been treated hostile by the prosecution.
PW.5 is the father of the complainant who has spoken about the incident without implicating any of the accused. 17
PW.6 is another relative of the deceased. She has identified M.O.7 and M.O.8 as belonging to the deceased.
PW.7 is the medical officer who conducted the post mortem examination and issued the P.M. report at Ex.P5. According to this witness, the deceased had sustained
(i) a cut throat injury over front of the neck at its middle 1/3rd measuring 10 cms. x 6 cms. x vertebral depth at the level of thyroid cartilage;
(ii) an oval impact abrasion measuring 1.5 cms. x 1 cms. over left side upper part of neck;
(iii) a transverse, superficial linear incised wound over right side clavicular region measuring 4 cms. x 0.5 cms. x skin depth;
(iv) a wedge shaped obliquely placed stab wound measuring 3 cms. x 1.5 cms. x cavity deep over medial end of right clavicle;
18
(v) cut wound over left lateral side of neck, 2 cms.
above the mid-clavicle measuring 1 cm x 0.5 cm x skin depth;
(vi) a contused area of 1.5 cm. x 1 cm. over dorsal aspect of left hand;
(vii) a linear crisscross abrasions, 5 in number, over left side of the neck;
According to PW.7 all the injuries were ante-mortem in nature and could be caused by a single edged sharp weapon with a pointed tip with a minimum length of blade measuring 6 cms. and width of 3 cms. He opined that the death was due to shock, as a result of cut throat injuries.
PW.7 further deposed that he examined the seized weapon M.O.2 and gave his opinion to the effect that the injuries noted in the P.M. report are possible with such a knife M.O.2.
PW.8 is the head constable in Jayalakshmipuram Police Station who collected the articles from FSL, Bengaluru. 19
PW.9 is another Constable in the same Police Station who carried the F.I.R. to the court.
PW.10, the PSI registered the F.I.R. Ex.P6 and forwarded the same to the court.
PW.11 is the I.O. who received the complaint Ex.P1 and conducted the spot mahazar Ex.P2 and the inquest mahazar Ex.P3 in the presence of the panchas. During his evidence, he identified M.Os.3, 5, 6 and 9 to 16.
PW.12 was the P.I. of Banaswadi Police Station at the relevant time. According to this witness, he arrested accused Nos.1 to 5 on 31.1.2001 and recorded the voluntary statement of accused No.1 as per Ex.P12, voluntary statement of accused No.2 as per Ex.P13 and voluntary statement of accused No.4 as per Ex.P14 and pursuant to the said voluntary statements, recovered a single golden ear stud from the shop of PW.13 under the mahazar Ex.P9 on 4.2.2001 and on the same day, at the instance of accused No.2, recovered the golden chain M.O.7 20 under the mahazar Ex.P10 from the receiver PW.14 and on 5.2.2001, at the instance of accused No.4, recovered a single ear stud from the shop of PW.14 under the mahazar Ex.P11. He identified both the ear studs which were marked as M.O.8.
PW.13 is the owner of the shop by name Ganapathi Jewellers at Dharwad. According to this witness, he produced two items of gold ornaments at the instance of the accused and the police seized the said ornaments under a mahazar Ex.P9. He identified M.O.8, but since he failed to identify accused No.1, he was treated as hostile. In the cross-examination by the Spl. Public Prosecutor, PW.13 denied the suggestion that even though at the instance of accused No.1 he returned the gold ornaments sold by accused No.1 to the police on 4.2.2001, out of fear of the accused, he failed to identify accused No.1.
PW.14 is another receiver of properties. He is owner of the shop by name Bhagyalakshmi Jewellers at Dharwad. This witness deposed that at the instance of accused No.2, he 21 produced M.O.7 on 4.2.2001 under mahazar Ex.P10 and on 5.2.2001, he produced one ear stud (M.O.8) at the instance of accused No.4 which was seized under a mahazar Ex.P11 in the presence of the panch witnesses.
PW.15 is a panch witness to the recovery of M.Os.7 and 8. This witness has deposed that in his presence, M.Os.8 and 9 were recovered at the instance of accused Nos.1, 2 and 4 under the mahazars Ex.P9, Ex.P10 and Ex.P11. He has identified M.Os.8 and 9 and has also admitted the contents of the mahazars Exhibits P9 to P.11.
18. From the above, it is clear that the entire case of the prosecution is based on a solitary circumstance namely the recovery of the gold ornaments belonging to the deceased at the instance of accused Nos.1, 2 and 4. But as it is contended that the evidence produced by the prosecution in proof of this circumstance is far from satisfactory and that the said evidence does not satisfy the standard of proof required in a criminal 22 case, it would be appropriate to analyse the evidence relied on by the prosecution in proof of this fact.
19. According to PW.1, on the date of the incident when he came home at about 2.00 p.m., he found the deceased lying dead with her throat slit and other injuries on her body. He has unequivocally stated that a two stranded mangalya chain from her neck and a pair of gold earrings were missing. It is relevant to note that by 3.00 p.m., he lodged a report as per Ex.P1. In this complaint, he has stated that a mangalya chain weighing about 50 gms., worn by his wife and a pair of white stone studded earrings were missing. It is narrated in the complaint - Ex.P1, that the said chain was prepared by his friend Sri.Venkatachala about three years' back and it was of batani bulb shaped design chain and the total weight of the chain and earrings was 56 gms. PW.1 has further deposed that he identified these ornaments in the Police Station as that of his wife. He has also identified M.Os.7 and 8 during his evidence before the court.
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20. Sri.Venkatachala is examined as PW.3. According to PW.3, he was a Goldsmith by profession and he was acquainted with PW.1 and the deceased. He has specifically deposed that during 1999-2000, the deceased brought a worn out mangalya chain and asked him to prepare a two stranded mangalya chain by adding some more gold and accordingly, he prepared two stranded mangalya chain weighing 45 gms., and gave it to her. He has further stated that before that he prepared a pair of white studded earring for the deceased. During his evidence, he identified both the articles M.O.7 and M.O.8 and specifically stated that these ornaments were prepared by him on the instructions of the deceased.
21. The evidence of PW.1 and PW.3, in our opinion, is sufficient to establish the identity of M.O.7 and M.O.8 as belonging to the deceased. Even one of the relatives examined by the prosecution namely PW.6 has also identified these ornaments as that of the deceased. But the learned counsel for 24 the accused have staunchly disputed this evidence on the ground that their evidence is at variance from the description of the missing ornaments mentioned in Ex.P1, therefore, the identification made by PW.1 and PW.3 cannot be relied on.
22. We are unable to accept this argument. In our assessment, what inspires confidence in the testimony of PW.1 and PW.3 is that at the earliest instance, the details of the articles missing from the person of the deceased are seen to have been narrated by PW.1 in his complaint Ex.P1. In his complaint PW.1 has categorically stated that those ornaments were prepared by Sri.Venkatachala (PW.3). This complaint is seen to have been lodged within one hour from the tracing of the dead body. Therefore, there was no occasion whatsoever for PW.1 to deliberate or to discuss about these matters. This itself therefore lends intrinsic corroboration to the testimony of PW.1. The circumstance brought out in the evidence of PW.3 indicates that he was closely acquainted with PW.1 and his family. He has stated in his evidence that on receiving the news of the incident, 25 he rushed to the house of the deceased and saw the dead body. We do not find any discrepancy in the evidence of PW.1 and PW.3 regarding the description of these articles. Though it is argued that PW.1 has not stated that the chain had two strands whereas the article produced before the court M.O.7 contains two strands, it must be remembered that all such details of the missing articles are not required to be mentioned in the F.I.R. F.I.R. is not an encyclopedia of the evidence. Non-mentioning of these details in the F.I.R., do not weaken the testimony of these witnesses. The very fact that PW.1 has specifically pointed out that these ornaments were prepared by PW.3, in our opinion, PW.3 was the best person to speak about the identification of these ornaments. There is nothing unnatural in the evidence of PW.3 in identifying his own craftsmanship. There is nothing in the entire cross-examination of PW.3 to suggest that he was an interested witness. Therefore, on overall consideration of the evidence of PW.1 and PW.3, we are of the firm view that the evidence of PW.1 and PW.3 is trustworthy and reliable in so far 26 as the identification of the gold ornaments M.O.7 and M.O.8 are concerned. As a result, we hold that the prosecution has proved the fact that M.O.7 and M.O.8 belonging to the deceased were found missing at the time of her murder.
23. In proof of the recovery of these articles at the instance of accused Nos.1, 2 and 4, the prosecution has mainly relied on the testimony of PW.12 - the Investigating Officer who recorded the statements of the accused after their arrest and proceeded to shops of the Jewelers namely PW.13 and PW.14 along with the panch witness PW.15 and seized these ornaments M.O.7 and M.O.8. All these witnesses have identified these articles and have consistently stated that these ornaments namely M.O.7 and M.O.8 were recovered at the instance of accused Nos.1, 2 and 4.
24. Learned counsel for the accused have seriously disputed the veracity and reliability of the evidence of these witnesses raising number of grounds. Assailing the evidence of 27 PW.13 and PW.14, it is contended that both these witnesses have not stated that the ornaments namely M.O.7 and M.O.8 were sold to them by the respective accused. The prosecution has not produced any corroborative material by way of receipt or vouchers in proof of the fact that the said ornaments were purchased by PW.13 and PW.14 from any of the accused. Their evidence is silent with regard to the weight of the gold purchased by them and the amount of money said to have been paid to any of these accused. Added to that, the very creditworthiness of the testimony of PW.13 and PW.14 is impeached by confronting them their previous statements namely Exhibits D2, D3, D4 and D5. Therefore, it is contended that no credence could be given to the testimony of these witnesses.
25. We have carefully considered the submissions made by the learned counsel and have scrutinized the evidence of PW.13 and PW.14 with reference to Exhibits D2 to D5. PW.13 was the owner of Ganapathi Jewelers situated at Dharwad. 28 According to this witness, on 4.2.2001, the Investigating Officer (PW.12) had brought one of the accused to his shop along with the panch witnesses. The accused asked him to return the ornaments sold to him. He returned two items of gold ornaments to the police. He further stated that the police prepared a mahazar in this regard as per Ex.P9. He identified M.O.8 and stated that the said earring was returned by him to the police. As this witness did not specifically speak about the identification of accused No.1 at whose instance the said earring was recovered, he was treated as hostile and in the cross- examination by the learned Public Prosecutor, he denied the suggestion that on 4.2.2001, he did not return the articles sold to him by the accused No.1. He further stated that because of the time gap, he was not in a position to identify accused No.1. Based on this evidence it is argued that as PW.13 has failed to identify accused No.1, the said recovery M.O.8 cannot be connected to accused No.1. This argument appears to have been canvassed by misreading the evidence. We find that the 29 identification of accused No.1 is established in the cross- examination of PW.13 wherein PW.13 has denied the suggestion that the said M.O.8 was not sold to him by accused No.1. Therefore, the contention in this regard cannot be accepted.
26. No doubt it is true that in the course of cross- examination of PW.13, the previous statements of PW.13 are confronted to him and the same are marked as Exhibits D2 and D3. Placing reliance on the judgment in the case of BINAY KUMAR SINGH vs. STATE OF BIHAR, (1997) 1 SCC 283, it is contended that in view of Ex.D2 and Ex.D3, the entire evidence of PW.13 stands impeached. In order to answer this contention, it may be necessary to refer to para 12 of the aforesaid judgment which reads as follows:
12. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in court. This principle is delineated in Section 155(3) of the Evidence Act and it must be borne in mind when reading 30 Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him.
But the second limb provides that "if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose for contradicting him". There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his 31 testimony in court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section
145.
27. In the light of the above proposition of law, if the cross-examination of PW.13 is analysed, Exhibits D2 and D3 are liable to be discarded for the simple reason that the procedure adopted by the defence counsel in confronting Exhibits D2 and D3 does not conform to the requirements of sections 145 or 155 of the Evidence Act. In our opinion, Exhibits D2 and D3 cannot be used to impeach the creditworthiness of the evidence of PW.13. In this regard, it is pertinent to note that in the cross- examination it is suggested to PW.13 that he has given evidence in S.C.No.602 of 2005 on 1.2.2005. He denied the suggestion and also denied the fact that the police had brought the accused to his shop and effected the recovery through them. In view of denial, his previous statement was marked as Ex.D2. Likewise it is elicited that PW.13 has given evidence in S.C.No.353 of 2002 32 and the previous statement given by him in S.C.No.353 of 2002 is marked as Ex.D3. These previous statements are brought on record contrary to the procedure prescribed in section 145 of the Evidence Act. As stated in the above decision, section 145 of the Evidence Act consists of two limbs. It is provided in the first limb of Section 145 of the Evidence Act that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. The second limb provides that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose for contradicting him. In the instant case, this requirement is not at all satisfied while confronting Exhibits D2 and D3. From the suggestions put to PW.13 it cannot be gathered that the accused in S.C.No.602 of 2005 and S.C.No.353 of 2002 are the same accused as in the present case. Mere marking of such statement without bringing to the attention of the witness the portion of the statement which is sought to be confronted and the accused in 33 respect of whom the statement related, it cannot be said that by confronting the said previous statements, the facts stated by him on oath in the instant case has been impeached. Therefore, we are of the view that Exhibits D2 and D3 do not have the effect of impeaching the credibility of PW.13.
28. Coming to the evidence of PW.14, he is the owner of Bhagyalakshmi Jewellers, Dharwad. This witness has clearly identified accused Nos.2 and 4 and has stated that on 4.2.2001, the Investigating Officer -PW.12 along with the panchas and the said accused Nos.2 and 4 had come to his shop. He has specifically stated that accused No.2 asked him to return the gold ornaments sold by him to PW.14 and accordingly, he returned the gold chain which he identified as M.O.7. Further PW.14 has deposed that on 5.2.2001 the Investigating Officer came to his shop along with accused No.4 and the panch witnesses and the accused No.4 asked him to return the gold ornaments sold by him and accordingly he returned seven items of gold and out of them, he identified the earring M.O.8. Thus it 34 could be seen that this witness has identified the accused Nos.2 and 4 and has also stated that at their instance, he returned the gold ornaments sold by the respective accused Nos.2 and 4. Therefore, the argument of the learned counsel that these witnesses have not stated that they have returned gold ornaments sold to them falls to the ground. In the cross- examination of this witness, the previous statements made by PW.14 in S.C.No.187 of 2005, S.C.No.601 of 2005 and S.C.No.602 of 2005 are marked at Exhibits D4 and D5. These previous statements also suffer from the same defect as discussed above. From Exhibits D4 and D5, it cannot be gathered as to which of the accused were brought to his shop and with reference to which accused he has deposed as per Exhibits D4 and D5. Therefore, Exhibits D4 and D5 are of no avail to the defence to contend that the evidence of PW.14 has been impeached by marking these documents.
29. It is also relevant to note that in the course of cross- examination of PW.14 it is brought out that the ornaments in 35 question were sold to PW.14 about 1½ years' back. It is argued that the offence in question had taken place on 2.11.2000. The recovery was effected on 5.2.2001 and under the said circumstances, the admission made by PW.14 to the effect that the gold ornaments were sold to him 1½ years prior to the recovery destroys the veracity of the recovery evidence relied on by the prosecution. Even this argument does not appeal to us. To appreciate this argument, it may be relevant to refer to the specific evidence given by PW.14 in this regard at para 4 of his deposition. It reads as follows:
"4. £À®èwªÀÄä ªÀÄvÀÄÛ ¥ÀÉÆðøÀgÀÄ 10 - 10.30 PÀÉÌ §AzÀÄ 11.30 ªÀgÀÉ UÀÉ EzÀÝgÀÄ. ¥ÀÉÆðøÀgÀÄ £ÀªÀÄä CAUÀrUÀÉ §AzÀÄ MAzÀÄ MAzÀƪÀgÀÉ ªÀµÀðzÀ »AzÀÉ D¨sÀgÀt £À£ÀUÀÉ ªÀiÁgÁl ªÀiÁrzÀÝgÀÄ. CªÀgÀÄ DVAzÁÝUÀÉ £ÀªÀÄä CAUÀrUÀÉ §gÀÄwÛzÀÝgÀÄ. 2001gÀ E¸À«AiÀÄ°è ¥ÀÉÆðøÀgÀÄ DvÀ£ÀÉÆA¢UÀÉ £ÀªÀÄä CAUÀrUÀÉ §A¢zÀÝgÀÄ. E£ïì¥ÀÉPÀÖgï ºÀÉÆgÀvÀÄ ¥Àr¹ 4 d£À ¥ÀÉÆðøÀgÀÄ EzÀÝgÀÄ. 12.30 gÀ ¸ÀªÀÄAiÀÄzÀ°è ¥ÀÉÆðøÀgÀÄ ªÀÉAPÀmÉñÀ JA§ÄªÀgÀ£ÀÄß PÀgÀÉzÀÄPÀÉÆAqÀÄ §AzÀgÀÄ. 2.30 gÀ ¸ÀªÀÄAiÀÄzÀªÀgÀÉ UÀÉ CAUÀrAiÀÄ°è EzÀÝgÀÄ."
The literal translation of the above portion of the evidence is that:
36
"Nalla Thimma and Police had come at about 10 - 10.30 and they were present till 11.30. The police had come to our shop about 1½ years back and sold the ornaments to him. They were coming to our shop often. In 2001 the police had come with him to our shop. Apart from the Police Inspector, there were four other police men. Around 12.30, the police brought Venkatesha and they were in the shop till 2.30."
This evidence, on the face of it, is vague and ambiguous. It cannot be gathered from the above statements whether the police on their own had come to the shop about 1½ years back or whether any of the accused had come to the shop about 1½ years back. This statement, in our opinion, does not help either the prosecution or the defence. The purpose of cross- examination is to bring out truth and not to confuse the witness. The manner in which the questions are posed to PW.14 indicates that the questions were not specific and definite with regard to the sale of the ornaments to PW.14. Therefore, we are of the 37 view that on the basis of the above answers, it is not proper to disbelieve the testimony of PW.14.
30. In appreciating the evidence of PW.13 and PW.14, it is relevant to note that the prosecution has not relied only on the evidence of PW.13 and PW.14 to prove the recovery. It is seen from the records that the prosecution has let in corroborative evidence by examining PW.15 - the panch witness. According to this witness, on 3.2.2001, the Vijayanagara police asked him to come to the Police Station and requested him to assist the Investigating Officer in recovering the gold ornaments sold by the accused in Hubli and Dharwad. Accordingly, he and other panch witnesses by name C.K.Murthy and Hanumanthegowda along with accused were taken in a TATA Sumo to Hubli and on 4.2.2001 in the morning, they reached Hubli and at 10.00 a.m., they reached Dharwad. Between 10.30 a.m. and 11.30 a.m., they recovered the gold ornaments from the shop of PW.13 at the instance of accused No.1. He has specifically stated that the accused No.1 asked the owner of the shop namely PW.13 to 38 return the gold ornaments sold by him. He has also identified his signature on the mahazar Ex.P9. Further PW.15 has stated that on 5.2.2001, in his presence, at the instance of accused Nos.2 and 4, PW.14 produced the gold ornaments sold by accused Nos.2 and 4 to him. He has identified the mahazar prepared at that time as per Ex.P11.
31. The evidence of PW.15 is sought to be challenged by placing reliance on the decision reported in BABUDAS vs. STATE OF M.P., 2003 SCC (Cri.) 1749 and STATE OF U.P. vs. ARUN KUMAR GUPTA, 2003 SCC (Cri.) 481. It is contended that as laid down in the above decision, any acceptable recovery has to be effected in the presence of a local respectable witness. In the instant case, PW.15 was a resident of Bengaluru and it is brought out in the cross-examination that he has taken part in as panch witness in a number of recoveries effected by PW.12. Therefore, no credence could be given to his evidence. 39
32. There is no rule of law that in every case, the recovery should be effected in the presence of a local witness. What is relevant to be noted is that, in the instant case, the accused were apprehended in Tumkur District and were brought to Bengaluru. PW.12 - the Investigating Officer has stated in his evidence that after the arrest of accused, he recorded their statements and ascertained that the gold ornaments robbed by them during the murder were sold by the respective accused to PW.13 and PW.14 in Hubli and Dharwad. It is not in dispute that the accused were taken all the way from Bengaluru to Hubli to effect recovery. Therefore, there is nothing unnatural for the Investigating Officer in procuring the witness from Bengaluru. In appreciating the evidence of PW.15 what is relevant to be noted is that even though this witness is subjected to lengthy cross- examination, not a single circumstance has been brought out to show that PW.15 is an interested or a partisan witness. That apart, his evidence finds corroboration in the panchanamas the contents of which are spoken to by him and are corroborated by 40 other witnesses namely PW.13, PW.14 and PW.12 -the Investigating Officer. He had no axe to grind against any of the accused. He has assisted the police in the investigation as the Law casts a duty on every citizen to assist the police in the investigation. Therefore merely because he was procured from Bengaluru, his evidence does not get tainted. The decisions relied on by the learned counsel do not lay down any rule of law that in the absence of any local witness, the testimony given by the panch witness looses its efficacy and cannot be given any credence. In the said decision, based on the fact situation of the said case, it has been observed that non-examination of a local and respectable witness who was very much available at the spot of occurrence, the case of prosecution is rendered doubtful. In the case of BABUDAS vs. STATE OF M.P. in 2003 SCC (CRI) 1749, the Hon'ble Supreme Court discarded the evidence of PW.17, the panch witness to the recovery as it was noticed that he was appearing as a witness for recovery on behalf of the prosecution ever since 1965. There is no such material in this 41 case to dub the evidence of PW.15. In the instant case, as the evidence of PW.15 has not been shaken or discredited in the cross-examination and his presence during the recovery finds suitable corroboration in the evidence of other witnesses, we are inclined to accept his evidence as truthful and reliable.
33. The argument of the learned counsel that the articles M.O.7 and M.O.8 were not packed or sealed at the time of seizure and on that score the recovery evidence relied on by the prosecution is rendered suspicious cannot be accepted. In our opinion, this contention does not militate against the case of the prosecution nor does it weaken the testimony of the above witnesses. Even assuming that there was any lapse on the part of the Investigating Officer in packing or sealing the articles, the same cannot be taken as a circumstance to doubt or disbelieve the testimony of the above witnesses who have consistently deposed about the recovery of these gold ornaments at the instance of accused Nos.1, 2 and 4. Even on factual score, we find from the records that soon after the recovery of these 42 articles, they were subjected to property form and were produced before the Magistrate and necessary permission was obtained by the Investigating Officer to retain the same. If in the course of investigation, the sealed articles are seen to have been opened for identification by the witnesses and under the said circumstances, if for any reason the Investigating Officer has failed to produce necessary evidence in proof of the fact that these articles were repacked and resealed, the lapse on his part cannot be taken as an instance to doubt or disbelieve the testimony of witnesses examined by the prosecution in proof of the recovery.
34. Lastly, the learned counsel for the accused have drawn our attention to the evidence of PW.12 - the Investigating Officer wherein it is elicited that a case was registered against the very same accused in Mico Layout Police Station in Cr.No.637 of 2000 in respect of the murder that had taken place at 4.30 a.m. on 2.11.2000. It is brought out in the evidence that the present case namely S.C.No.447 of 2004 relates to the 43 offence which is stated to have taken place on the same day between 10.00 a.m. to 2.00 p.m. Based on this evidence it is argued by the learned counsel that the offence registered in Mico Layout Police Station relates to the offence which is stated to have taken place in Mysuru which is about 150 kms., from Bengaluru and therefore, it is impossible to believe that very same accused could have been involved in the offence alleged in the present case on the same day.
35. We have considered this submission. No doubt it is true that it is elicited from PW.12 that against the very same accused, Cr.No.637 of 2000 was registered in Mico Layout Police Station within Bengaluru city, but no records appear to have been produced before the Trial Court to show that the time gap between the two offences rendered it impossible for the accused to get themselves involved in the case in hand. In the course of the argument, learned counsel for the accused has produced a memo along with the xerox copy of the judgment in S.C.No.57 of 2002. It is seen therefrom that the judgment in the said case 44 was pronounced on 7.10.2004. PW.12 was examined on 4.3.2010. Therefore, there was no impediment whatsoever for the accused to produce the certified copy before the Trial Court to show that the timing of the second incident rendered it impossible for the accused to get themselves involved in the instant offence. PW.12 has not been asked any further question regarding the registration of these cases on the same day. That apart, we do not find anything in the entire evidence to suggest that the accused have taken any plea of alibi to contend that at the relevant time, they were not within the limits of this court. Therefore, even this argument, in our opinion, does not militate against the case of the prosecution.
36. On consideration of the material on record, it is seen that PW.12 has specifically deposed that while investigating the case, he came to know that the above accused were involved in 36 dacoities and murders, 5 dacoity cases, 8 house breaking trespass cases. Further PW.12 has stated that while investigating all those cases, he came to know that the modus 45 operandi in all these cases were almost similar to the present case and the case registered in Banaswadi Police Station in Cr.No.353 of 1999. Under the said circumstances, it was incumbent on the defence to get necessary clarification from PW.12 to rule out the possibility of two offences being committed on the same day at two different places so as to build up an argument on that plea.
37. Thus on cumulative consideration of the above evidence, we do not find any serious contradictions or improbabilities in the case of the prosecution as sought to be made out by the appellants. The defects highlighted by the learned counsel are nothing unnatural and are bound to occur in such type of cases wherein the accused are arrested after considerable period of time. The time gap from the date of offence and the recovery is likely to blur the memory of the witnesses giving rise to inconsistencies or variations, but as long as the said inconsistencies do not affect the core case of the prosecution, there is no reason to discard or disbelieve the 46 evidence placed before the court especially when it is tested in the cross-examination. As held by the Hon'ble Supreme Court in M.NARSINGA RAO vs. STATE OF ANDHRA PRADESH, AIR 2001 SC 318, "Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion."
It is laid down by the Constitution Bench in M.G.AGARWAL vs. STATE OF MAHARASHTRA, AIR 1963 SC 200 as under:
"In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of doctrine of benefit of doubt."
It is only the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond 47 reasonable doubt. The evidence adduced by the prosecution in proof of the factum of recovery of M.O.7 and M.O.8 at the instance of accused Nos.1, 2 and 4, in our opinion, satisfies the evidential standard required in a criminal case. We therefore hold that the prosecution has cogently and convincingly proved the recovery of M.O.7 and M.O.8 at the instance of accused Nos.1, 2 and 4. From the evidence of PW.12, PW.13, PW.14 and PW.15, it is established that M.O.7 and M.O.8 were sold to PW.13 and PW.14 by accused Nos.1, 2 and 4 respectively. There is no explanation by accused as to how they came in possession of M.O.7 and M.O.8 belonging to the deceased.
38. Having come to the above conclusion, the crucial question that remains for determination is whether on the basis of the above circumstance can it be inferred that accused were instrumental in the murder of the deceased? Admittedly the accused were charged for the offence under section 396 of Indian Penal Code. Murder is an integral part of the offence under section 396 of Indian Penal Code. But in the instant case, 48 the only circumstance proved against the accused Nos.1, 2 and 4 is the recovery of gold ornaments belonging to the deceased. In addition to this circumstance, the Trial Court however has relied on the voluntary statements attributed to the accused at Exhibits P.12, P.13 and P.14 and has come to the conclusion that these two circumstances render the accused guilty of the offences under section 396 of Indian Penal Code. We are unable to concur with the reasoning and the finding of the Trial Court in this regard. In our opinion, the circumstance of unexplained recovery of gold ornaments belonging to the deceased, in view of illustration (a) to section 114 of the Evidence Act may at the most give rise to an inference that they were either receivers of stolen property or were the person who committed the theft, but it does lead to the conclusion that the theft and the murder had taken place one at the same time. This view has been authoritatively laid down by the Hon'ble Supreme Court as back as in 1956 the case of SANWAT KHAN & Another vs. STATE OF RAJASTHAN, AIR 1956 SC 54. In the said case also, there was 49 no direct evidence whatsoever in proving the participation of the accused in the murder for which the accused were charged. Learned Sessions Judge in convicting the accused therein under section 302 Indian Penal Code, took into consideration the circumstances of the recovery of a gold kanthi and tashak at the instance of accused and the fact that the accused were seen near the place of occurrence on the day previous to the murder. While setting aside the conviction recorded by the learned Sessions Court, the Hon'ble Supreme Court has held as under:
In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.50
In the said case, the accused were held guilty of the offence under section 380 Indian Penal Code.
39. Similar, if not identical situation was considered by the Hon'ble Supreme Court in a recent case in RAJ KUMAR alias RAJU vs. STATFE (NCT of Delhi), AIR 2017 SC 614 and the Hon'ble Supreme Court following the decision in AIR 1956 SC 54 has observed as under:
12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some 51 evidence to show that the robbery and the murder occurred at the same time i.e., in the course of the same transaction. No such evidence is forthcoming.
Further the Hon'ble Supreme Court has held that, "However, on the basis of the presumption permissible under illustration (a) of section 114 of the Evidence Act, it has to be held that the conviction of the accused under Section 392 IPC is well-founded."
40. The case in hand bear striking resemblance to the above two cases. Except the proof of recovery of M.O.7 and M.O.8 at the instance of accused Nos.1, 2 and 4, no other evidence is produced by the prosecution to show that robbery and the murder occurred at the same time. Therefore, the conviction of the accused under section 396 cannot be sustained.
41. In so far as accused No.3 is concerned, there is no evidence even with regard to the recovery of gold ornaments 52 belonging to the deceased from his possession. Therefore, accused No.3 is entitled to be acquitted outright.
42. In the cases discussed above, in addition to the recovery evidence, the prosecution had relied on the evidence relating to the accused last seen near about the house of the deceased. In spite of it, in the absence of any reliable evidence in proof of the murder, the Hon'ble Supreme Court found it proper not to draw any inference attracting the offence of murder.
43. In the instant case, the situation is still worse. The Trial Court has recorded conviction for the offence under section 396 of Indian Penal Code based on the voluntary statements of the accused and the recovery of gold ornaments. It is trite law that no conviction would lie on the basis of the voluntary statements recorded by the police officers while the accused were in their custody. Section 25 of the Evidence Act in unmistakable terms provides that no confession made to a police 53 officer is relevant or shall be proved against a person accused of any offence. Section 26 mandates that no confession by any person while he is in custody of a police officer shall be relevant or proved against him. It is unfortunate that the learned Sessions Judge has placed reliance on Exhibits P12, P13 and P14 namely the voluntary statements of the accused to base the conviction. Therefore, on overall consideration of the above facts and circumstances of the case, we are of the view that the conviction recorded against the accused under section 396 of Indian Penal Code cannot be sustained.
44. However, taking into account the proof of recovery of gold ornaments at the instance of accused Nos.1, 2 and 4, we are of the view that accused Nos.1, 2 and 4 are liable to be convicted for the offence punishable under section 392 of Indian Penal Code and accordingly, they are convicted for the offence punishable under section 392 of Indian Penal Code. Having regard to the background of the accused as spoken to by PW.12 and especially in view of the fact that accused are alleged to 54 have been involved in similar offences, we deem it appropriate to sentence accused Nos.1, 2 and 4 for rigorous imprisonment for a period of ten years and a fine of Rs.10,000/- each.
45. In view of the above conclusion, the sentence of death awarded by the Trial Court cannot be sustained and the same is hereby set-aside and in modification of the sentence awarded by the Trial Court, the accused Nos.1, 2 and 4 are sentenced to rigorous imprisonment for a period of ten years and a fine of Rs.10,000/- each. In default to pay the fine amount, each of the accused shall undergo further rigorous imprisonment for a period of one year. The accused No.3 is acquitted of the charge under section 396 of Indian Penal Code.
46. Though accused No.4 has not preferred any independent appeal against conviction, yet we having answered the reference made by the learned Sessions Court under section 366 of Cr.P.C. and having come to the conclusion that the conviction recorded by the Trial Court under section 396 of 55 Indian Penal Code and the consequent award of death penalty is not sustainable, the benefit of this order shall be extended to accused No.4. Consequently, the conviction awarded against accused No.4 shall stand modified as one under section 392 of Indian Penal Code.
ORDER Crl.RC.No.17 of 2010 is rejected in the aforesaid terms. Crl.A.No.158 of 2011 and Crl.A.1029 of 2011 are partly allowed. The conviction of the accused Nos.1, 2 and 4 for the offence under section 396 read with section 34 of Indian Penal Code is set-aside and in modification thereof, the accused No.1 - Dodda Hanuma, accused No.2 - Venkatesh @ Chandra and accused No.4 - Nalla Thimma @ Thimma are convicted for the offence punishable under section 392 of Indian Penal Code and are sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.10,000/- each and in default to pay the fine amount, each of the accused shall undergo further rigorous imprisonment for a period of one year. 56
The accused Nos.1, 2 and 4 are entitled for the benefit of set-off for the period of detention they have already undergone in this case as per section 428 of Cr.P.C. If the accused have already served the substantive period of sentence, they shall be set at large in this case, if not required in any other case.
Accused No.3 -Munikrishna @ Krishna is acquitted of the charge under section 396 of Indian Penal Code.
The Registry is directed to communicate the operative portion of the order to the Jail Authorities, Hindalga Jail, Belgaum where the accused are lodged.
SD/- SD/-
JUDGE JUDGE
Rsk/Bss.