Karnataka High Court
Murali vs State By Devanahalli Police on 3 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL APPEAL No.289/2015
c/w.
CRIMINAL APPEAL No.262/2015,
CRIMINAL APPEAL No.407/2015,
CRIMINAL APPEAL No.531/2015.
In Criminal Appeal No.289/2015:
BETWEEN
Murali
S/o Shivanna,
Aged 30 years,
Residing at 2nd Cross,
Dasara Beedi, Devanahalli Town,
Bengaluru Rural District-562 110.
...Appellant
(By Sri.K.Diwakar, Advocate)
AND
State by Devanahalli Police,
Represented by SPP, High Court,
Bengaluru-560 001. ...Respondent
(By Sri.Vijayakumar Majage, Additional SPP)
2
This Criminal Appeal is filed under Section 374(2)
of CR.P.C praying to set aside the order dated
27.01.2015 and sentence dated 29.01.2015, passed by
the II Additional District and Sessions Judge, Bengaluru
Rural District, Bengaluru, in S.C.No.40/2009-
convicting the appellant/accused No.1 for the offences
P/U/S 364, 302, 201 and 120-B read with Section 34 of
IPC.
In Criminal Appeal No.262/2015:
BETWEEN
Sri.Raghu,
S/o Sampangi,
Aged about 26 years,
R/at Shanthi Nagara,
Devanahalli Town,
Bengaluru Rural District. ...Appellant
(By Sri.B.V.Pinto, Advocate)
AND:
The State by
Devanahalli Police Station,
District:Bengaluru Rural. ...Respondent
(By Sri.Vijayakumar Majage, Additional SPP)
This Criminal Appeal is filed under Section 374(2)
of CR.P.C praying to set aside the order dated
27.01.2015 and sentences dated 29.01.2015, passed
by the I Additional District and Sessions Judge, C/c
3
Court of II Additional District and Sessions Judge,
Bengaluru Rural District, Bengaluru, in
S.C.No.40/2009- convicting the appellant/accused No.4
for the offences P/U/S 364, 302, 201 and 120-B read
with Section 34 of IPC.
In Criminal Appeal No.407/2015:
BETWEEN
P.A.Srinivasa @ Seena,
S/o.P.E.Adinarayana,
Aged about 24 years,
Residing at Tank Road,
Near Shani Mahathma Temple,
Devanahalli Town-562 110,
Bengaluru Rural District. ...Appellant
(By Sri.Hashmath Pasha, Advocate)
AND
State of Karnataka by
Devanahalli Police,
PIN No.562 110.
Bengaluru Rural District. ...Respondent
(By Sri.Vijaya Kumar Majage, Additional SPP)
This Criminal Appeal is filed under Section 374(2)
of CR.P.C praying to set aside the order dated
27.01.2015 and sentences dated 29.01.2015, passed
by the II Additional District and Sessions Judge,
Bengaluru Rural District, Bengaluru, in
S.C.No.40/2009- convicting the appellant/accused
4
No.2 for the offences P/U/S 364, 302, 201 and 120-B
read with Section 34 of IPC.
In Criminal Appeal No.531/2015
BETWEEN:
Thouseef Kolhar @ Thouseef,
S/o.Adam H.Kolhar,
Aged about 20 years,
Near Venkataramanappa Building,
Sulibele Road, Devanahalli Town,
Bengaluru Rural District,
Now residing at No.350,
Near Ukaubu Mosque Road,
Thanisandra Main Road, Ashwath Nagar,
Bengaluru-560 077. ... Appellant
(By Sri.Hashmath Pasha, Advocate)
AND
State of Karnataka by
Devanahalli Police,
Bengaluru Rural District.-562 110 ... Respondent
(By Sri.Vijaya Kumar Majage, Additional SPP)
This Criminal Appeal is filed under Section 374(2)
of CR.P.C praying to set aside the order dated
27.01.2015 and sentence dated 29.01.2015, passed by
the II Additional District and Sessions Judge, Bengaluru
Rural District, Bengaluru, in S.C.No.40/2009 convicting
the appellant/accused No.3 for the offences P/U/S 364,
302, 201 and 120-B read with Section 34 of IPC.
5
These Criminal Appeals coming on for hearing this
day, BUDIHAL R.B., J, delivered the following:
JUDGMENT
Crl.A.No.289/2015 is connected with Crl.A.Nos.407/2015, 531/2015 and Crl.A.No.262/2015.
2. Since all the above four appeals are arising in respect of very same judgment and order of conviction and the sentence imposed by the Courts below, they were taken up together to dispose of by this common judgment in order to avoid repetition of discussion about the facts and law.
3. The appellants in all the four appeals being aggrieved by the judgment and order of conviction dated 27.01.2015 passed by the II Additional Sessions Judge, Bangalore Rural District, Bangalore in SC.No.40/2009 wherein accused Nos.1 to 4 were convicted for the offences punishable under Sections 6 120-B, 364, 302, 201 and read with Section 34 of IPC and accordingly, they were sentenced.
4. Brief facts of the prosecution case as per the complaint averments are that, PW1-Kumar, S/o Chikmuniyappa filed the missing complaint-Ex.P5 with regard to missing of his son. It is stated that on 09.09.2008 evening at about 5.30 PM he left the house stating that he will go for tuition class and he has not at all come back to the house and he went missing. They made search in the relatives house and in the tuition class and in other places, even then the boy was not traced. Hence, he requested the police to trace his son. In the said missing complaint itself the name, age and other particulars regarding facial features and about the cloth he had worn were furnished.
5. On the basis of the said missing complaint, a case came to be registered in Cr.No.50/2008 for 7 missing of boy. Subsequently, another complaint Ex.P1 came to be filed on 17.09.2008 by PW1-Kumar wherein he has mentioned that on 13.09.2008 case has been already registered for missing of boy who went out of the house on 09.09.2008 evening at 5.30 pm and he went missing. In that regard, FIR also came to be registered in Cr.No.50/2008 and he has obtained the copy of the same. When complainant and police were making search for missing of boy on 17.09.2008, at about 7.30 pm some unknown person called to complainant mobile phone from the No.9980415952 and demanded a ransom of Rs.15,00,000/- stating that on the very day if the said amount is given, then son of complainant will be handed over to him or otherwise, they will kill him. It is also stated in the phone message that if he try to inform to the police, then he will not get his son and within half an hour complainant has to come to the place told in the phone message arranging 8 an amount of Rs.15,00,000/-. When the complainant verified from which number the call has come from to his mobile, it is from the phone No.9611397293. He requested the police to ascertain the said person from the call details without any danger or trouble to his son and his son may be handed over to him and legal action may be taken against the said persons.
6. On the basis of the said complaint, in the same crime number which has already registered in Cr.No.50/2008 for the missing of boy, police have included the Sections 363(A), 364, 364(A), 368 of IPC. Subsequently, after completion of the investigation, Investigation Officer filed the chargesheet as against accused Nos.1 to 4 for the offence punishable under Sections 363(A), 364(A), 368, 302, 201, 120B read with Section 34 of IPC.
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7. The learned Sessions Judge after hearing both sides and perusing material prepared the charge as against the accused persons and when the charge is read over to them, accused persons, pleaded not guilty in the matter. Accordingly, charges were framed, plea of Accused Nos.1 to 4 was also recorded and matter is set down for trial.
8. Prosecution in support of its case, in all examined 32 witnesses and produced 62 documents as per Exs.P1 to P62 and also got marked 11 material objects. Then accused persons were examined under Section 313 of Cr.P.C and incriminating material was read over to them by framing questionnaire and the answers given by accused Nos. 1 to 4 were recorded. On the side of defence, no witnesses were examined but during the course of trial defence got marked documents at Ex.D1 to D6.
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9. After hearing the arguments of both sides and after considering the materials both oral and documentary evidence, the learned Sessions Judge convicted all the four accused persons for the said offences and sentenced accordingly. Therefore, being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the said judgment on the grounds as mentioned in the respective appeal memorandum, accused Nos.1 to 4 before this Court in the above four appeals.
10. We have heard the arguments of learned counsel appearing for appellant-accused No.1, Sri.K.Diwakar so also heard the arguments of Sri.Hashmath Pasha, learned counsel appearing for appellants-accused Nos. 2 and 3, we have also heard the arguments of Sri.B.V.Pinto, learned counsel appearing for appellant-accused No.4 and heard the 11 arguments of learned Additional SPP, Sri.Vijaykumar Majage in respect of above four appeals.
11. The learned counsel made the submission that so far as the accused No.1 is concerned no material has been placed by the prosecution connecting accused no.1 for the alleged offences. It is his submission that so far as accused No.1 is concerned, it is not the case of the prosecution that he has actually participated in committing the alleged assault on the deceased but only thing that is alleged against accused No.1 is, he hired accused Nos. 2 to 4 on supari and there was criminal conspiracy and accused No.1 and other accused persons committed alleged offence.
12. The learned counsel made the submission that so far as alleged conspiracy is concerned, there is no material placed by the prosecution and whatever the material placed by the prosecution is not making out a 12 case against accused No.1. He made the submission that in so far as the alleged motive is concerned, there is no material and there is no consistency in the evidence of PW1 and his wife-PW6. He also drew our attention to the deposition of the witnesses and made the submission that the evidence of Investigating Officer clearly goes to show that he himself admitted in his cross-examination that he has not recorded the statements of any of the witnesses with regard to alleged conspiracy by accused No.1 with other accused and even he has not made attempt to collect any material in that regard. Learned counsel further made the submission that there is absolutely no material to show about the involvement of accused No.1 in committing the alleged offence. He also made the submission so far as evidence of PW12 and PW13, PW12 is one Naveez Pasha, according to the prosecution who claims to be the eye witnesses to the 13 incident, turned hostile and not supporting the prosecution case. Even in the cross-examination nothing has been elicited from their mouth to show anything as against appellant-accused No.1. It is also submitted so far as document Ex.P4-Spot Mahazar and P7-seizure mahazar are concerned, material goes to show that accused No.1 was not at all present while conducting those two panchanamas. He submitted that, all these aspects were not at all taken into consideration by learned Sessions Judge in spite of such material, learned Sessions Judge convicted accused No.1 also. Hence, he submitted to allow the appeal and set aside the judgment and order of conviction passed by Court below as against accused No.1 is concerned.
13. Learned counsel Sri.Hashmath Pasha, appearing for accused Nos.2 and 3 made the submission that as per the case of the prosecution and 14 as per the chargesheet, PW12-Narveez Pasha is said to be eye witnesses who is the class mate of deceased boy. He submitted that looking to the evidence of PW12- Narveez Pasha, he turned hostile and not supported the prosecution case and when cross- examined by learned Public Prosecutor, even in the cross-examination nothing has been elicited from his mouth to believe the story of prosecution, he denied the all the suggestions put on him regarding the case of the prosecution. Learned counsel also made submission that materials goes to show that the boy left the house on 09.09.2008 at about 5.30 pm but its only on 13.09.2008, first complaint regarding missing of the boy is filed. He submitted that in the complaint- Ex.P1 that it is stated by PW1 that he received phone call to his mobile phone by No.9611397293 which said to be in the name of Sharath Kumar but he made the submission that during the course of investigation 15 prosecution was not able to make out a case about the person who has called to mobile phone of the complainant-PW1. He also made submission that even with regard to the call details are concerned, over the phone there was demand for Rs.15,00,000/- as ransom. Prosecution has not been taken any steps to collect the materials in this regard. He made the submission that the evidence of prosecution goes to show that they made search for SIM on that particular mobile phone, but it was not traced. In this regard, learned counsel made submission that it is not enough to show that they made search and SIM was not available.
14. Learned counsel submits that if the documents relating to the same were collected, it could have transpired that SIM was standing in whose name and it could have clinched the issue, which is not done in the case. It is also submitted that alleged offence 16 under Section 302 of IPC, it was only added as per 3rd FIR for adding the same with the offence which was already registered. Learned counsel made submission that it is the prosecution case that accused Nos.2 to 4 made voluntary statements as per Exs.P48, 49 and 50. He drew our attention to the entire materials and paper books and also the original records, with the help of the same he made the submission that prosecution was not able to prove this alleged voluntary statements with the acceptable and consistent evidence. He made the submission that even for the sake of appreciation, it is to be relied upon, there are voluntary statements of accused Nos.2 and 3 and he drew our attention to entire material and contents of Ex.D6 part of case dairy and to the evidence of PW1 the cross examination, learned counsel made submission that these materials clearly suggest that in the place where the dead body was buried already there was an 17 information to the police as well as to the public in this behalf, therefore, the exhumation of the body is not at all at the instance or on the voluntary statement given by the accused Nos.2 and 3. Hence, he made submission, as the mandatory requirement of Section 27 of Indian Evidence Act (herein after called 'Act') is not at all complied with, the trial Court wrongly relied upon the alleged voluntary statements, the wrongly held exhumation of dead body, it was at the instance of Accused Nos.2 and 3. Learned counsel submits that this finding recorded by the trial Court is against the material produced in the case. Learned counsel made the submission that so far as the information, as per Exs.P48 and 49 is concerned; he submits that information was there to the police on earlier dates mentioned in these two documents. In this connection, he also referred and drew our attention to the CD para- 7 dated 25.09.2008 marked as Ex.D6. It is also the 18 contention of the counsel that referring to Ex.P46, the 3rd complaint and FIR under Ex.P47-second FIR on the basis of said complaint by that time police were already knowing where the dead body was there and accused by that time were not at all arrested. Hence, he made submission that only material available for the trial Court to base the conviction as against accused Nos.2 and 3 is mainly on the alleged voluntary statements. But the said materials have not been proved to the satisfaction of the Court. Hence, he submits that the voluntary statements cannot be relied upon by the Court as the mandatory requirement under Section 27 of the Act was not complied with. Drawing our attention to document Ex.P4, he made submission that at the end portion of the document Ex.P4 there are corrections effected in the said document by using whitener. It is clearly visible to the naked eyes and this clearly goes to show that there is manipulation of the 19 said document by the police and they were anti time documents only to suit the case of prosecution. In this regard, we have perused the said document at Sl.No.2B. He made submission referring to Ex.P4 that there is no case dairy regarding the conducting this mahazar from 9.am to 9.30 am. Hence, it is his contention that when it is not shown in the case dairy, this itself clearly goes to show that there is manipulation of even Ex.P4 also. Regarding Ex.P6, his contention is that, in this document there are corrections effected regarding the timing at which it is said to have been conducted. It is mentioned at point No.28, the time of commencement of conducting investigation is shown at 5.pm and closing time is shown as 7 pm. Learned counsel made the submission that looking to the very document, it clearly goes to show that time has been changed by using whitener, and there is small initial put by the investigating officer 20 but it clearly goes to show that there was corrections effected in the said document. Learned counsel also drew our attention to contents of the document marked at Ex.D4 at page No.7 it is mentioned that from 3.30 pm the dead body was exhumed and inquest proceedings were conducted till 5.30 pm. Even at this time the learned counsel, drew our attention to the remand application submitted before the Magistrate Court at Ex.D6, which is the entry made in the order sheet in Crime No.50/2008 before the Committal Court, this is regarding taking custody of accused Nos.1 to 4, wherein it is mentioned date as 26.09.2008 timing at about 4 pm, which is signed by the concerned Police Officer in the margin of the order sheet for having taken the Police custody of accused Nos.1 to 4. Referring to this material, learned counsel made submission that this is contrary to the time regarding commencement at 3.30 as mentioned in the document 21 Ex.D4. Referring to these materials, learned counsel made submission that these materials are sufficient to hold that fact regarding manipulation of the records by the police and the materials produced before the Court are not proving that exhumation of the body is as per the information and at the instance of accused Nos.2 and 3. Hence, he submitted that the investigation papers have been manipulated and they are tinted. Therefore, said materials cannot be relied upon. By making said manipulation and anti-dating timing and papers, prosecution tried to suppress the real facts before the Court. Hence, he submitted that conduct of the investigation officer in this particular investigation is highly questionable and such material said to have been collected by investigation officer cannot be given any importance and cannot be relied upon by this Court. Regarding the case of prosecution so far as the merits are concerned, learned counsel drew our 22 attention to the earlier evidence of prosecution witnesses. He made submission that PW12 who said to be the eye witness and turned hostile and not supported the prosecution case and therefore, in view of this fact, the prosecution case is as good as the case rests on circumstantial evidence. Hence, he made submission that motive projected by the prosecution for committing alleged offence so far as accused Nos. 2 and 3 are concerned, there is no motive at all because the prosecution material goes to show motive for accused No.1 who is relative of PW1 is that there was a property dispute regarding the sale of the property, in which accused No.1 demanded to give the amount but PW1 not at all given the said amount to accused No.1, at that time accused No.1 challenged to PW1 that he know how to get that amount. Learned counsel submitted that this motive is totally not connected so far as accused Nos.2 and 3 are concerned, as they are 23 not at all family members of PW1 and accused No.1. Regarding the another motive for demand for Rs.15,00,000/- is concerned, learned counsel made submission that there is no acceptable material that who has made such demand and regarding the telephone calls to the mobile phone of PW1 is concerned, though it is stated in the second complaint, about the same but the call details were not produced by the prosecution to prove the same. Therefore, learned counsel made submission that when the conversation for demand of ransom of Rs.15,00,000/- is over the phone, this call details which establishes the said fact. Hence, he submitted that even with regard to the second motive regarding Rs.15,00,000/- as ransom is concerned, there is no material placed by the prosecution. Regarding the last seen theory that deceased went from house along with PW12 on his two wheeler vehicle, PW12 himself has not supported the 24 case of the prosecution . Therefore, referring to these materials, oral and documents of prosecution witnesses, learned counsel made submission that there is no material even with regard to the last seen theory of the deceased along with company of PW12 who said to be with the accused persons at the end that is while committing alleged murder and burial of the deceased.
15. Regarding the other circumstances with regard to the oral evidence of PW4 and PW7 -the couple, accused No.2-Srinivas came to their shop and he asked for crowbar and at that time he came in vehicle and there were other 3 to 4 persons in the said car, he made the submission that referring to these two witnesses, there is no incriminating material as against accused No.2 Srinivas, because in the evidence it is established by the defence that they were neighboring shop owners and for putting tent or the trashed shops, neighbourers used to get the crowbar and even with 25 regard to accused No.2, Srinivas said to have been taken crowbar, it has given in the cross-examination of the defence that there is possibility of accused No.2 taking the same for putting scaffold. Hence, learned counsel made submission that even it is accepted that he came and took crowbar from shop of PW4 and 7, but the evidence placed on record clearly goes to show that it was used for the purpose of scaffold which is brought on record. Hence, only on that basis, it cannot be inferred that he used the said material in order to dig the ground as per prosecution.
16. Regarding the cause of death of the deceased is concerned, learned counsel drew our attention to the post mortem report Ex.36 and learned counsel with reference to this document and referring to the opinion as to the cause of death is concerned, the Doctor who conducted autopsy made it clear that body was highly purified and probable time of death is 26 as per post mortem is approximately 15 days. He also drew our attention to the oral evidence of Doctor who has examined as PW15 and made submission even considering the oral evidence of doctor in the examination-in-chief he has deposed, as body was completely decomposed, it was not possible for him to ascertain the cause of death but in his opinion it is stated that the death might have taken place 15 days prior to his examination. Hence, learned counsel made submission that when cause of death itself is not ascertained by the Doctor which is also one of the important aspect to be taken into consideration by the Court that prosecution was not able to establish even the cause of death also when the case rests on circumstantial evidence, it is for the prosecution to prove the each and every circumstance was to form the complete change but it is not done in this case. Learned counsel also made submission that identity of 27 the deceased is also not established by the cogent or satisfactory materials. With regard to the materials placed by prosecution regarding the superimposition, it is said to have been conducted and mirror image copy of the digital record was not produced before the Court. Therefore, he made submission in the absence of such material, the prosecution cannot said to be established regarding the identity of dead body of the deceased. Hence, on this ground also learned counsel made submission that identity of the deceased is body of the son of PW1 is also not established in the case. Apart from that, learned counsel also made submission that so far as alleged recovery is concerned, it is joint recovery from accused Nos.2 and 3 which is not permissible under law. Therefore, viewed from any angle, prosecution has utterly failed to make prove the involvement of accused Nos.2 and 3 in the alleged incident. The trial Court relied upon the statement of 28 PW12 made before the learned Magistrate-PW30 under Section 164 of Cr.P.C. but PW12 has denied that he has given such statement before PW30. Learned counsel referring to this aspect has relied upon the decision of the Hon'ble Apex Court so far as the statement said to have been recorded under Section 164 of Cr.P.C. which is as good as the statement said to have been recorded under Section 161 of Cr.P.C during the investigation. It can be used for the purpose of corroboration by the prosecution and contradiction by the defence. In this connection he drew our attention to the decision of Hon'ble Apex Court reported in (2010) 6 SCC 736 rendered in the case of Baij Nath Sah V/s State of Bihar, para-6 of the said decision and made submission that what is the evidence available and statement recorded under Section 164 of Cr.P.C., Hon'ble Apex Court made it very clear in the said paragraph. Hence, referring to 29 these materials, learned counsel made submission that learned Sessions Judge, wrongly proceeded in the matter and wrongly convicted the appellants-accused Nos.2 and 3. Hence, he prays to allow the appeals preferred by accused Nos.2 and 3 and to set aside the judgment and order of conviction passed by the Courts below by acquitting from all the charges.
17. Learned counsel in support of his arguments relied upon the following decisions
1) (2015) 7 SCC page 178 relevant para-26, 27 and 28;
2) AIR 1964 SC 900, relevant para-5;
3) AIR SP 490 relevant para-13 and 14;
4) AIR 1971 SC 1877 para-10;
5) AIR 1988 SC 1705 para-14;
6) AIR 1975 SC 258 para-13, 14 and 17.
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18. Learned counsel Sri.B.V.Pinto, appearing for appellant-accused No.4 made submission that looking to the evidence of PW4 and PW7, they have not at all spoken about the presence of accused No.4 in their cross-examination. Learned counsel also made submission that looking to the prosecution material there is no mention about the role played by the accused No.4. It is also his submission that accused No.4 was not at all arrested at the time of arrest of other accused. He also submitted that so far as accused No.4 is concerned, one mobile phone and one car are said to have been seized. In this connection, he drew our attention to the evidence of the prosecution witnesses and made submission that there is no acceptable material even with regard to the alleged mobile phone and car. And drawing our attention to the charges framed by the learned Sessions Judge so far as accused No.4 is concerned, learned counsel submitted 31 that there is no charge for the offences punishable under Section 302 of IPC. Hence, learned counsel made submission so far as accused No.4 is concerned, there is no material placed by prosecution. In spite of that learned Sessions Judge convicted appellant-accused No.4 and submitted that said finding recorded by the learned Sessions Judge is not in accordance with law and hence, appeal is to be allowed. He further submitted that judgment and order of conviction passed by Court below as against accused No.4 is to be set aside and accused No.4 is to be acquitted from all the charges levelled against him.
19. We perused the grounds in all the four appeal memos, judgment and order of conviction passed by the trial Court, oral and documentary evidence produced before the trial Court, decisions relied upon by the learned counsel appearing for accused Nos.2 and 3 and we have also considered the submissions 32 made by the learned counsel appearing for the parties at the Bar.
20. Looking to the complaint averments at Ex.P1, PW.12 is the eye witness to the alleged incident, who is said to have been present throughout. Therefore, let us peruse the oral evidence of PW.12-Narvis Pasha he has deposed that he does not know accused persons present before the Court. He does not know anything about the case. Devanahalli Police did not call him at all to any place and he has not given any statement before the police pertaining to this case so also he has not given any statement before the Magistrate Court, Devanahalli. The signature found at page No.1 is his signature but the signatures found at page Nos.2, 3 and 4 are not his signatures. He does not know as to where he put those signatures. He is doing PUC through correspondence course. He knows Nandeesha, who is no more. But he has not stated before the police 33 that when Nandeesha has expired. Therefore, this witness has been treated as hostile at the request of the learned Public Prosecutor.
21. In the cross-examination he has denied all the suggestions made by the learned Public Prosecutor. Therefore, looking to the entire cross-examination of PW.12, nothing has been elicited from the mouth of this witness so as to believe the story of the prosecution.
22. However, it is the case of the prosecution that PW.12 has given the statement under Section 164 of Cr.P.C. before the Magistrate Court. In this regard, the prosecution has examined the Senior Civil Judge as PW.30, who has deposed that on 24.11.2008 the statement of PW.12 was recorded in the Open Court as per Ex.P33. As the boy was minor at the time of his examination, some questions were put to test his 34 understanding capacity. As the boy gave satisfactory answers, he was treated as a competent person to depose before the Court. Accordingly, PW.30 confirmed that boy has given his statement as per Ex.P33. In the cross-examination, PW.30 has deposed that he informed the said boy that whatever the statement he is going to make, the same will be used against him as evidence and the same was informed orally. But it is not mentioned specifically in Ex.P33. He denied the suggestion that in Ex.P33 there is no mention that the said boy is giving the statement without any sort of pressure or fear. He denied the suggestion that police have brought him forcibly and he was forced to give statement. In the cross- examination by the learned counsel for accused Nos.2 and 3, it was suggested that requirements of Section 164(5) of Cr.P.C. were not followed. Same has been denied by PW.30. In the cross-examination by 35 advocate for accused No.4, PW.30 deposed that at the time of recording the statement of the boy, he sent the Investigating Officer out of the Court Hall, but there is no mention in the order about the same. Therefore, looking to the evidence of PW.30 he has clearly deposed about boy coming to the Court and giving such statement in the Open Court. But even it is assumed for the sake of appreciation that PW.12 has given such statement in that event also, only on that basis, it cannot be said that the prosecution has established its case. In this connection, we have perused the decision of the Hon'ble Apex Court in the case of Baij Nath Sah vs. State of Bihar reported in (2010)6 SCC 736, wherein at paragraph-6, Their Lordships have ruled as under:
We have heard,, learned counsel for the purpose and have gone through the record. We see judgments of the courts below that 36 only material that has been used against the appellant is the statement under Section 164 Cr.P.C. this Court in Ram Kishan Singh Vs. Harmit Kaur has held that the statement under Section 164 is not substantive evidence and can be utilised only to corroborate or contradict the witness vis-a-
vis statement made in the court. In other words, it can be utilized only as a previous statement and nothing more.
23. Therefore, looking to the principle enunciated in the aforesaid decision, the said statement can be used for the purpose of corroboration and contradiction. But in the case on hand, as we have already discussed the evidence of PW.12, he has clearly deposed that he has not at all given any such statement.
24. There are no other eye witnesses to the alleged incident. The case of the prosecution is based on the circumstantial evidence. If it is to be treated 37 based on circumstantial evidence, it is for the prosecution to establish each of the circumstances relied upon by it. If there is any missing link in the chain of circumstances, it is to be considered as fatal to the case of the prosecution. Keeping this principle in mind about the case resting on the circumstantial evidence, let us examine the prosecution material in this regard. The motive as per the prosecution is that there used to be quarrel and difference of opinions between accused No.1 and PW.1 with regard to sale of the property and sharing of the sale proceeds. We perused the evidence of PW.1 in this regard. PW.1 has deposed in the examination-in-chief that accused No.1 has lost his mother, when he was six years' old he was brought up in the house of his senior aunt at Hebbagodi. When he attained majority, they constructed the house. Elder brother of Accused No.1- Murali is unmarried. He has further deposed that his 38 elder brother lost his wife and his three daughters were married. Thinking that Murali was not having the house and his father was also living in a dilapidated house, he brought him from the house of senior aunt to his house. After the incident, Murali went away. As accused No.1 was having one acre of land and a house and the house was constructed jointly and PW.1 is not having any other issues except Nandeesha and Murali was entitled to get only a meager portion in his property and thinking that if Nandeesha is eliminated, he will get the entire property and because of that reason, he caused the death of his son Nandeesha. In the cross-examination, PW.1 has admitted that as accused No.1 was having love and affection towards him and because of the same he only searched a girl for him and performed his marriage. There are no properties to be divided between himself and his deceased brothers. He denied the suggestion that 39 accused No.1 neither demanded any amount from him nor he made any galata for the amount. He denied the suggestion that he has not at all given any statement before the police as to how much amount accused No.1 demanded and in connection with which properties. He has also deposed that so far as the land in Sy.Nos.377 and 378 are concerned, transactions have been taken place and they were already sold. The sale deed was already executed and the amount fallen to the share of his brothers has already been given and there is no due in that regard. He further deposed that in Sy.No.22 measuring 2 acres 29 guntas, at Devanahalli himself and his two brothers Shivanna and Rajanna are also having shares. Except that property there are no other properties to be divided in their family. He admitted the suggestion that accused No.1 is not having any money problem and he is leading his life happily. He is 40 leading his life on the earnings and he is not dependent on him.
25. Looking to the evidence of PW.6, the wife of PW.1, she has deposed that accused No.1 is the son of the brother of her husband. Three months earlier to the death of her son, her husband and father of accused No.1 together sold the family property and they did not receive any amount. At that time, accused No.1 made galata with her husband-PW.1 and assaulted him once. Her husband asked him as to why he was doing so and asked him to enquire with his father. Because of that reason accused No.1 made challenge to PW.1 that he has not given any amount to him and he warned PW.1 as to see what he is going to do with him. Thereafter on 9.9.2008, when her son went to his school he did not come back. Accused No.1 gave supari to accused Nos.2 to 4 and through them he got her son murdered. In the cross-examination, PW.6 41 has deposed that in the house which was constructed, her husband and her brother-in-law divided the said property. Their family is having some landed property, but she does not know the extent of the said property. There is no division in the said landed property and they are joint. Her husband and her brother-in-law were cultivating the said property jointly. Six months earlier to the death of her son, her husband conducted the sale of the landed property. She does not know the survey number to which it belongs to and the village, so also what is the extent and for how much the said property was sold. But the said landed property was sold by her husband and the father of accused No.1. When accused No.1 picked up quarrel with her husband, they have not received the entire amount of sale consideration and even the sale deed is not also executed. Her husband received some advance amount, but she does not know the amount which was 42 received in advance. Accused No.1 demanded Rs.1,00,000/- with her husband, but she does not know the date, month and year. When accused No.1 made galata, they have not given any complaint before the police, even panchayat was also not held. Looking to the evidence of PW.6 as well as PW.1 regarding the difference of opinions and with regard to the dispute of sale of properties and sharing of the sale proceeds between PW.1 and accused No.1 is concerned, there is no consistency. Therefore, the prosecution has failed to make out the case for motive for committing the alleged offence by accused No.1 with the help of accused Nos.2 to 4.
26. It is also the case of the prosecution that there was a demand for an amount of Rs.15 Lakhs ransom from somebody's phone to mobile phone of PW.1 and the said amount of Rs.15 Lakhs has to be taken to a particular place without informing the police 43 and then only they will send back the deceased Nandeesha. Even with regard to this motive also we perused the prosecution material. Admittedly, even according to the prosecution, the call details are not tendered in the evidence during the course of trial in order to establish that there was phone conversion between PW.1 and another man who put demand for 15 Lakhs. No documents are produced on the side of the prosecution. In the absence of such documents placed before the Court only on vague and general averment in the complaint and on the basis of the oral evidence of PW.1, it cannot be said that there is proof regarding this motive for demand of Rs.15 Lakhs from PW.1 in connection with alleged kidnapping of Nandeesha by the accused persons.
27. In so far as accused No.1 is concerned, the only allegation is that he conspired with accused Nos.2 to 4 and he gave supari to these accused persons 44 stating that if they eliminate Nandeesha, they will get Rs.3 Lakhs and in turn accused No.2 gets the assistance of accused Nos.3 and 4 on the promise that out of Rs.3 Lakhs, Rs.1,00,000/- each will be given to them also. As against accused No.1, except this conspiracy it is not the prosecution case that actually he participated in the alleged assault on the deceased. We perused the evidence of the Investigating Officer- PW.31. In the cross-examination by the advocate for accused No.1, he deposed that in connection with accused No.1 giving supari to accused Nos.2 to 4 to commit the murder of Nandeesha, he has not examined any witnesses. Looking to this material, it clearly goes to show that prosecution has not placed any material so far as involvement of accused No.1 in committing the alleged offence is concerned.
28. Looking to the evidence as against accused Nos.2 to 3 are concerned, the evidence relied upon by 45 the prosecution is the alleged voluntary statements said to have been given by accused Nos.2 to 4, which are at Exs.P48, P49 and P50. But so far as these statements are concerned, it has been seriously challenged by the defence during the course of cross- examination of the Investigating Officer contending that the accused persons have not at all given any such statement and they were created for the purpose of this case and there is a manipulation of the said documents putting antetime and antedates. Let us examine the evidence of the Investigating Officer in this regard. He has deposed that when he prepared Ex.P3, he has not arrested accused No.4. He has not seized the mud of the place where the dead body of Nandeesha was buried for the purpose of chemical examination. He has not taken accused No.4 to the place where the dead body was buried. In the cross- examination, PW.31 has admitted the suggestion as 46 true that in connection with this case, in the FIR which was prepared on 13.9.2008 there is no mention about the accused persons. On 25.9.2008, the second FIR was prepared and even in the second FIR also, the names of the accused is mentioned as Srinivas and others. On 26.9.2008 when he produced the accused persons for the first time before the Court in the remand application pertaining to accused Nos.1 to 4, it is stated that he produced accused Nos.1 to 4 on 26.9.2008 at 1.45 p.m. but he apprehended them on 25.9.2008. He admitted the suggestion as true that in the second page of remand application pertaining to accused Nos.1 to 4, it was typed as 24.9.2008 at 1.45 p.m. As they were apprehended on 25.9.2008, the date was corrected as 25.9.2008. Even he has admitted the suggestion as true that in connection with the said correction, he has not made any writings in the remand application. He denied the suggestion that on 47 24.9.2008 itself he took accused persons to his custody and they were in the police custody. He has denied the suggestion that on 25.9.2008 he has called the complainant to the Police Station and told that he apprehended accused No.1 and whether he has to say anything as against accused No.1. He cannot say the timings as to when the contents of Ex.D6 were typed on 25.9.2008. He produced Ex.D6 before the Court on 26.9.2008. In the report which he has sent to the Taluka Executive Magistrate on 26.9.2008 in the morning he has not mentioned about the fact that at the place where the dead body of Nandeesha was buried, his head and hairs are visible and PC.Nos.6746, 5877 were deputed to guard the place. On 25.9.2008, about the rest of accused persons and in the report submitted to the Taluka Executive Magistrate, he has not mentioned the time details of their apprehension. From 25.9.2008 to 26.9.2008 till accused persons were 48 produced before the Court, they were in their Police Station. On 25.9.2008 and 26.9.2008, i.e., for two days, himself was the SHO of the Police Station. He cannot say without seeing the station house diary whether PC.Nos.6746 and 5877 who were deputed to guard the place were on day duty or night duty, but it was in the evening. Perusing Ex.D4, it is mentioned that from 3.30 p.m. the dead body was exhumed and inquest proceedings were conducted till 5.30 p.m. In Ex.P6 at Sl.No.28 which is pertaining to time of conducting inquest proceedings, wherein, the time is mentioned that it was commenced at 5.00 p.m. and it was closed at 7.00 p.m. The figures 5 and 7 were written by putting whitener on the original writings and there are two small initials, which clearly goes to show that there are corrections made in the original documents at Ex.P6. Looking to the documents as well as the oral evidence of the Investigating Officer, in the 49 cross-examination, learned counsel for accused Nos.2 to 3 is justified in making the submission that the said documents were manipulated, corrections are carried out to the original writings, time has been changed. Therefore, it is the contention of the defence that accused No.3 was apprehended on 24.9.2008 itself and not on 25.9.2008, as deposed by the prosecution witness. Looking to the cross-examination of the Investigating Officer, it supports the contention of the defence that they were apprehended on 24.9.2008 itself. Apart from the materials placed on record, by way of cross-examination by the defence to the prosecution witnesses, it made amply clear that even earlier to 26.9.2008 the alleged date of recording the voluntary statements of the accused persons, the information regarding place where the dead body was buried was very much available with the police and two Police Constables were deputed to guard the place. In 50 this regard we have perused the evidence of PW.1. In the cross-examination he has deposed that on 25.9.2008 at 10.00 a.m. when he has gone to the Police Station, accused Srinivas and Murali were there in the Police Station. He further deposed that they were in the Police Station even earlier he going to the Police Station. This evidence also goes to show that they were apprehended much earlier and it also falsifies the contention and the evidence of the Investigating Officer that they were apprehended on 25.9.2008 at 1.45 p.m. Therefore, if all these materials were taken into consideration, the contention of the prosecution that place where the dead body was buried came to be known at the instance of the accused persons and as per their voluntary statements, cannot be accepted at all. Therefore, the prosecution has failed to make out a case that for the first time there is discovery of the place where the dead body of 51 the deceased was buried and it was on the basis of the voluntary statements of the accused persons. As the materials clearly go to show that much earlier to the same, it was within the knowledge of the police as well as the public about the said place. Therefore, the alleged voluntary statements are not fulfilling the requirements of Section 65 of the act. Therefore, these aspects have not been taken into consideration by the trial Court before placing reliance on the said voluntary statements.
29. Even in the cross-examination of the Investigating Officer, it also goes to show that he has not made any enquiry with regard to mobile phone which was with Nandish. But he deposed that there was mobile phone with him. In that connection also, he has not conducted any investigation. Therefore, this Court cannot rely upon the voluntary statements said to have been recorded by the Investigating Officer. In 52 this connection, we have also perused the decision of the Hon'ble Apex Court in the case of Makhan Singh vs. State of Punjab reported in AIR 1988 1705, wherein at paragraph-14 Their Lordships have observed as under:-
Then we are left with the recovery of the dead bodies. Investigating officer S.I. Puran Singh (PW 8) admitted in cross examination that after recording the statement of Amrik Singh he could not know the correct place where the bodies and other articles were kept buried and concealed. This clearly indicates that he could get some information from the statement of Amrik Singh. As seen earlier, the field is an open place surrounded by other fields and according to Nihal Singh the adjacent field is his own as he had taken it on lease and therefore it cannot be said that any one else could not have known about the bodies being buried in the field. The Investigating officer himself admitted that after recording the 53 statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was not sufficient. It cannot therefore, be said that the place from where the bodies were recovered was such a place about which knowledge could only be attributed to the appellant and none alse.
Since the exclusive knowledge to the appellant cannot be attributed, the evidence under Section 27 also cannot be said to be a circumstances against the appellant.
30. So also another decision in the case of Thimma vs. State of Mysore reported in AIR 1971 SC 1871. At paragraph-10, it has been observed by the Hon'ble Apex Court as under:-
Reliance on behalf of the prosecution was also placed on the information given by the appellant which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, 54 therefore, the statement conveying the information was admissible in evidence under Section 27 of the Indian 'Evidence Act. This information, it was argued, also lends support to the appellant's guilt. It appears to us that when P.W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by mere manipulation of the record of case diary. It would, in the circumstances, be somewhat unsafe to rely on this information for proving the appellant's guilt. We are accordingly 55 disinclined to take into consideration this statement.
31. Even looking to the principle enunciated in the above two decisions also, no reliance can be placed on the voluntary statements at Exs.P48, P49 and P50. They were wrongly relied upon by the trial Court in spite of legal infirmities which we have discussed factually as well as on legal aspects.
32. Looking to the evidence of the Investigating Officer, in so far as accused No.4 is concerned, as per the case of the prosecution one mobile and one car said to have been seized by the Investigating Officer in the presence of the panch witnesses. In this connection, perusing the cross-examination of PW.31, he has deposed that on 24.9.2008 in Ex.P47 the name of accused No.4 is not at all mentioned. In Ex.P47 even nothing has been mentioned about the role played by accused No.4. He has admitted the suggestion that at 56 the time of seizing mobile phone pertaining to accused No.4 and while drawing mahazar at Ex.P12 he has not called the panch witnesses from the locality to make them as panch witnesses to the said mahazar and he has not obtained the signatures of any such persons. But however, he denied the suggestion that while preparing Exs.P12 and P13 he examined only the relatives of PW.1 and other persons who are interested belonging to the community of PW.1 and made them as panch witnesses. He admitted that while preparing Ex.P3 he has not apprehended accused No.4. He has also deposed that he has not taken accused No.4 to the place where the dead body of the deceased Nandish was buried. He denied the suggestion that from accused No.4 he has not at all seized mobile phone and Maruthi Van and he has apprehended him when he was in the house and brought him to the Police Station. He denied further suggestion that in order to create the 57 evidence for the allegation that they kidnapped Nandish and committed his murder and to gain support as accused No.4 was having Maruthi Van, purposely he was arrayed as accused person and his Maruthi Van has been planted in the said case. Even the observations made by the trial Court in this regard at paragraphs-6 and 7 of the impugned judgment "I do agree no one witnesses have deposed about involvement of accused No.4 Raghu in the crime. Even no one properties recovered at the instance of accused No.4 Raghu and he has not committed murder of deceased Nandeesha but he might have driven the vehicle car bearing No.KA-43-M-865. It seems that accused No.4 Raghu supported the other accused persons". These observations of the trial Court in the impugned judgment make it very clear that there is no acceptable and worth believable material as against accused No.4. In spite of the said observations, the 58 trial Court proceeded to convict accused No.4 on the hypothesis that he might have driven the car in order to assist the other accused persons.
33. We have also perused the Postmortem report and the evidence of the doctor-PW.15 who conducted the postmortem over the dead body of the deceased Nandish. Looking to the PM report at Ex.P36, it is clear that the doctor's opinion regarding cause of death cannot be given as body is highly putrified probable time of death to post mortem is approximately fifteen days. Same is the evidence of the doctor-PW.15 who has deposed that as mentioned in the PM report cause of death of the deceased is not known. He has deposed that in his opinion as the dead body was decomposed highly, he was not in a position to give the cause of the death of the deceased and in his opinion the death might have occurred 15 days earlier to the postmortem. Therefore, even the cause of the death of 59 the deceased is also not known even looking to the PM report as well as the oral evidence of PW.15. In this connection, we have perused the decision of the Hon'ble Apex Court relied upon by the learned counsel appearing for accused Nos.2 to 3 in the case of State of Pujab vs. Bhajan Singh and others reported in AIR 75 SC 258. The relevant paragraphs-13, 14 and 17 read as under:-
13. We have heard Mr. Sharma on behalf of the appellant-State and are of the opinion that no case has been made for interference with the judgment of the High Court. There is no eye witness of the occurrence and the conviction of the accused is sought to be secured on the basis of circumstantial evidence. We, however, find that the evidence which has been adduced in this case is far from satisfactory and that it suffers from a number of infirmities. In the first instance, there is no evidence on record to show that the two dead bodies which are 60 alleged to have been recovered in instance of the disclosure statement of Bhajan Singh were those of Bachan Singh and Harbans Singh deceased. The evidence of Dr. Saluja is clear on the point that the features of the persons on whose dead bodies the doctor performed post mortem were unrecognisable. Question then arises as to whether the death of the two persons whose dead bodies were recovered was homicidal.
So far as this aspect is concerned, we find that Dr. Saluja has deposed that he found no marks of ligature on either of the two dead bodies. According further to the doctor, he could not find the cause of death because the two dead bodies were in a decomposed state. In the face of the above evidence of the doctor, it is not possible to hold that the death of the two persons, whose bodies were recovered, was homicidal.
14. The learned Sessions Judge in the course of his judgment has observed that 61 the doctor who performed post mortem examination was careless inasmuch as he failed to send the two dead bodies to the Professor of Anatomy who might have been in a position to express opinion after examining the hyoid bone and cervical vertebra as to whether a death of the two deceased persons was due to strangulation. Although it may be that it would have been more appropriate on the part of the doctor to have sent the dead bodies to an anatomy expert, the fact that the doctor did not do so cannot be a ground for drawing an inference adverse to the accused. The accused cannot be made to suffer because of that omission of the doctor. It would indeed be contrary to all accepted principles to give the benefit of that omission to the prosecution. The onus in a criminal trial is upon the prosecution to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution would be entitled to get the benefit of that.
62
15. xxx xxx xxx xxx xxx
16. xxx xxx xxx xxx xxx
17. The circumstances of this case undoubtedly create suspicion against the accused. Suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused. Another weakness of the prosecution case is that as many as four persons have been involved in this case. Even if it may be assumed that the dead bodies which were recovered from the place in front of the house of the accused were those of Harbans Singh and Bachan Singh deceased and that their death was homicidal, it is difficult to say whether the dastardly crime was the act of one or two culprits or of a larger number of them. In any case it is difficult to fix their identity. 63
34. Therefore, looking to the principle and the observations made by Their Lordships in the aforesaid paragraphs it supports the contention of the defence.
35. It is further contention of the learned counsel appearing for accused Nos.2 and 3 that call details pertaining to any of the mobile phones said to have been seized, are not collected and produced before the Court. But as contended by the learned Additional SPP, the call details have been collected and produced along with the charge sheet, but somehow they were not tendered in the evidence before the trial Court. Therefore, it is an admitted fact that even according to the prosecution the said documents were not tendered in the evidence giving an opportunity to the accused to cross examine on that aspect. When the prosecution has relied upon the said material and taking such contention that even the conversation between PW.1 and another man who called him over phone 64 demanding for an amount of Rs.15 Lakhs, the burden is on the prosecution to prove the said fact with cogent and acceptable material. Therefore, there is no supporting material like call details by the prosecution regarding the calls or the conversion between PW.1 and the accused persons, or between the accused persons themselves. Therefore, the contention of the prosecution that there were such call details, is difficult to be accepted by the Court. Perusing the prosecution material, it has come on record through the mouth of the prosecution witness that in so far as SIM card of the mobile phone of the deceased Nandish is concerned, they made an attempt to trace the said SIM, but it was not traced. But on the other hand, looking to the cross-examination of the Investigating Officer, he admitted that in so far as the mobile of the deceased Nandish he has not made any enquiry during the course of investigation and not collected any 65 material, though he was having the mobile phone. It has come in the evidence that the mobile phone of one Sharat Babu and his SIM card was used by unknown person and from the mobile of the said SIM card there was a to PW.1 demanding an amount of 15 Lakhs as ransom. But no supportive material is placed and even said Sharat Babu has not been examined at least to say that to whom he has given his mobile with the said SIM card. Therefore, regarding the contention taken by PW.1 in the second complaint that there was such a demand as ransom to send back his son Nadeesha, we do not find any worth believable material on the side of the prosecution.
36. In so far as identification of the dead body is concerned, though the learned counsel for accused Nos.2 and 3 seriously contended about the super imposition test and contended that it is not in accordance with the requirements and whatever it is 66 said to have been conducted to super imposition, it is not going to prove that it was the dead body of the deceased Nandeesha. But same cannot be accepted because the parents have identified the dead body based on the dress which the deceased was wearing at the time when he left the house. Even perusing the contents of the missing complaint also, there was mention about the particulars of dress which was wearing by the deceased. Therefore, at the very first instance there was complaint for man missing. Looking to all these materials, we are of the considered opinion that the learned trial Judge has not taken at all these aspects into consideration, wrongly read evidence and proceeded with the material holding that all the four accused persons are guilty. On re-appreciation of the entire material, we are of the considered opinion that none of the circumstances relied upon by the prosecution has been established with cogent and 67 acceptable material. Hence, the judgment and order passed by the trial Court is without any supporting material and hence, the same is not sustainable in law. Therefore, the benefit of doubt should be given to the accused persons. Accordingly, we pass the following:-
Appeals are allowed. The judgment and order of conviction and sentence dated 27/29.01.2015 passed by the II Additional District and Sessions Judge, Bangalore Rural District, Bangalore, in S.C.No.40/2009 is set aside. Appellants-Accused Nos.1 to 4, namely, Murali, P.A.Srinivasa @ Seena, Thouseef Kolhar @ Thouseef and Raghu are acquitted of all the charges levelled against them.
The concerned prison authorities are hereby directed to release accused Nos.1 to 4-appellants herein forthwith, if they are not required in any other case.68
The bail bonds of accused No.4-Raghu stand cancelled.
In view of the disposal of the main appeals, I.A.No.2/2015 for suspension of sentence filed in Criminal Appeal No.407/2015 is dismissed as it does not survive for consideration.
Sd/-
JUDGE Sd/-
JUDGE *sb - Pages 1 to 30 *ck/- Pages 31 to till end.