Karnataka High Court
Smt. Vanaja And Another vs State By Banaswadi Police, Bangalore ... on 18 December, 1998
Equivalent citations: 1999(1)ALD(CRI)402, 2000(1)KARLJ85
Author: B. Padmaraj
Bench: B. Padmaraj
JUDGMENT
1. These two appeals are interconnected as they are filed to challenge the common judgment and order dated 6-2-1998 in S.C. No. 28 of 1994 passed by the IV Additional District Judge, Mayo Hall (CCH No. 21), in passing whereof, the learned Sessions Judge while convicting and sentencing the appellant 1 and 2 in the first appeal (they were accused 1 and 2 in the Sessions case) for imprisonment for life, he had acquitted the respondents 1 and 2 (they were accused 3 and 4 in the Sessions Case) in the second appeal.
2. The first appeal is filed by the accused 1 and 2-convicts to challenge their conviction and sentence for life imprisonment under Section 302 read with Section 34 of the IPC. The second appeal is filed by the State to challenge the same insofar as the same related to the acquittal of the accused 3 and 4 of the said offences.
3. In the first appeal, the appellant 1 is represented by the learned Counsel Sri Thimmarayappa whereas the appellant 2 therein is represented by Mr. Tomy Sebastian of M/s. Tomy Sebastian and Associates, Bangalore and the respondent-State is represented by the State Public Prosecutor Sri B.R. Nanjundaiah. The second appeal having been filed by the State, the learned State Public Prosecutor Sri B.R. Nanjundaiah represented the appellant-State, whereas the respondents 1 and 2 in the said appeal are represented by M/s. Tomy Sebastian of M/s. Tomy Sebastian and Associates, Bangalore.
4. We heard the respective Counsel appearing for the parties and the learned State Public Prosecutor appearing for the State. We have also perused the case papers in the two appeals and further perused the case records of the Court below in S.C. No. 28 of 1994.
5. We first narrate the facts of the prosecution case; the same are as hereunder :
The appellant 1-Vanaja and the appellant 2-Dhananjeya Reddy in the above first appeal and the respondent 1-Nagaraj and the respondent 2-Subramani alias Mani in the second appeal were the four accused persons in S.C. No. 28 of 1994 on the file of the Additional Sessions Judge, Mayo Hall (CCH No. 21), Civil Station, Bangalore (hereinafter for convenience referred to as the 'Sessions Judge'). All of them were tried for the offence under Section 300 read with Section 34 of the IPC, for the murder of one Amarnath, son of P.W. 3, V. Rajanna of Shivadi Village of the State of Andhra Pradesh.
6. For the purpose of convenience, we refer to the parties herein as they occurred before the learned Sessions Judge in the Sessions Case.
7. The accused 1 was the wife of the deceased Amarnath. They were married on 11-3-1992 at the residence of accused 1 at Naganakotai in Chittoor District (Andhra Pradesh). At the time of their marriage, Amarnath was in Military service and was stationed at Delhi. Accused 2 was the paramour of accused 1. At one point of time, they were working as teachers at Gnanodaya English School at Madanapalli together and that they were in friendly terms earlier to the marriage of accused 1 with the deceased also. The accused 3 and accused 4 were the associates of accused 2 drawn for the purpose of committal of the offence. After the marriage, in the month of March, 1992 it is stated that the accused 1 stayed with deceased hardly for about 4 days as he had to return to his military headquarters at Delhi. Accused 1 did not agree to go to Delhi and join the deceased. Accused 1 continued to work as a teacher in the Gnanodaya English School and continued her affair freely with accused 2. That, accused 1 had written letters to the deceased to his Delhi address and the said letters were all in bad taste and written in foul language, at times, abusing the deceased, no matter that he was newly married. There was no understanding between the couple. Therefore, a Panchayat was held in the parent's house of the accused 1 to thrash out the serious differences between the accused 1 and the deceased. In the said Panchayat, P.W. 3 the father of the deceased, P.W. 7 the relative of the deceased and P.W. 33 the paternal uncle of accused 1 and her other relatives were present. It was decided in the said Panchayat that the accused 1 should abandon her job and join the deceased. Thereafter, the deceased came down from Delhi to Bangalore in the month of March, 1993 to work as a Technician in the Madras Engineering Group Centre, a Military Establishment at Marutisevanagar, Bangalore which was at a distance of about 2 kms. from his rented house in Subbayyanapalya, Bangalore. That, in the month of April, 1993 the deceased took that house on lease bearing No. 655 at Subbayyanapalya Extension, Banaswadi. That, thereafter, accused 1 was brought to Bangalore by P.W. 3 and P.W. 7 and thus, accused 1 joined the deceased. Before coming over to Bangalore, it is stated that accused 1 bad written three incriminating inland letters dated 5-4-1993, 9-4-1993 and 19-4-1993 marked as M.Os. 23, 22 and 21 respectively, all in her own handwriting with her signatures. The said letters were not only in foul language, but accused 1 even gone to the extent of disowning the deceased, calling him as impotent and not at all fit to be called as her husband. In one of the above three letters, she had even threatened the deceased saying that she would not spare him and that she would be coming down to join him only to take revenge. It is in this backdrop of strained relationship between accused 1 and the deceased, they started living under a common roof as 'husband and wife' in the above rented house at Subbayyanapalya extension, an outskirt of Bangalore City, belonging to P.W. 4 one Krishnappa. As stated above, at that time, the deceased was working in Madras Engineering Group Centre, Marutisevanagar, Bangalore, popularly known as MEG Centre on deputation basis and one could reach that house of the deceased at Subbayyanapalya by cycling in about 15 minutes from his workplace i.e., MEG Centre.
8. The further case of the prosecution is that accused 1 though started living with the deceased at Banaswadi, she was in constant contact with accused 2 at Madanapalli as he continued to be a teacher in yet another school by name, 'Vijaya Bharati English School' also at Madanapalli as the said school was connected with a telephone. That, accused 1 and accused 2 planned together to murder the deceased and for that purpose, accused 2 had also taken the assistance of accused 3 and accused 4, his associates. In furtherance of the said plan, accused 2 had sent accused 3 well in advance to Bangalore on 28-3-1993 from Madanapalti and thereafter, accused 2 enjoined accused 4 on the very day i.e., 28-3-1993. That the accused 2 engaged a car bearing registration No. AP:03 B/2349. P.W. 20-Narayan was the driver who had taken accused 2 and accused 4 to Bangalore in that car. P.W. 20 had been introduced to accused 2 and accused 4 by P.W. 21-Sriramulu, yet another taxi driver operating at Madanapalli. As a matter of fact, accused 2 had first approached P.W. 21, also a car driver at Madanapalli, to take his services to go over to Bangalore. As his car was under repair at that point of time, P.W. 21 desired P.W. 20 to bave the job of taking A-2 to A-4 to Bangalore in his i.e., P.W. 20's car. P.W. 20 had also brought along with him P.W. 38, the cleaner of the car and all the four of them left Madanapalli at about 5.30 or 6 p.m. on 28-3-1992. On their way, at Cbintamani, they attended to the repair of the car in M.B.S. Garage for about half an hour and they left Chintamani and their destination was Banaswadi in Bangalore. That, they reached Mukunda theatre at Banaswadi at about 9.30 or 10.00 p.m. on that day, at which point accused 3 joined accused 2 and accused 4, may be as pre-planned. That, accused 2 to 4 and P.W. 20-driver had taken their meals, hot drinks and beer at Sambram Bar near the said place. That, the cleaner of the car P.W. 38 stayed back in the car, when the rest of them had been to the said Bar. That, P.W. 15-Chennappa served food and drinks in the said Bar to accused 2 to 4. After taking their food and the drinks, accused 2 to accused 4 visited the nearby pan shop of one Vinayaka, P.W. 45 and purchased from him pans and cigarettes. Later, accused 2 to 4 joined P.W. 38 in the car. The car was parked near the above said Mukunda Theatre at a distance of about 4 furlongs from the house of the deceased and the accused 1. That accused 2 to accused 4 told the car driver P.W. 20 and the car cleaner P.W. 38 that they had marriage function to attend to and they would join them later.
9. The further case of the prosecution is that from Mukunda theatre, accused 2 to accused 4 had gone towards the house of accused 1. When accused 3 and accused 4 stood at a distance. Accused 2 went to the house of accused 1 and fetched from accused 1 a key of a newly constructed house of one P.W. 5-Nagaraj. Accused 1 had the key of the newly constructed house of P.W. 5 in the opposite side, for the reason that P.W. 5 had made over the same to accused 1 on the presentation to her that if any prospective tenant desired to see the house to take on lease, accused 1 might show the house to him or her. That, accused 2 to accused 4 thus entered into the house of P.W. 5 in the opposite side. That, at that point of time, the deceased was away on his duty to MEG Centre as he had his duty upto 2 a.m. on that night. At one point of time, it is stated that accused 2 left accused 3 and accused 4 in the said house of P.W. 5 and in the mid stayed for about one hour in the company of accused 1 in the house of the deceased. That, accused 2 returned to accused 3 and accused 4 in the house of P.W. 5 at about 1.30 a.m. That, at about 2.30 a.m. or so, the deceased returned from his duty by his cycle and went inside his house and the deceased as well as accused 1 went to sleep. That, after half an hour or so, accused I came out of the house and alerted accused 2 to accused 4 that her husband, the deceased went into sleep and saying so, brought all the said three accused persons into the house.
10. That, the accused 2 to 4 have committed the murder of the deceased-Amarnath in a most heinous and barbarous way. It is stated that, when all the accused persons entered the house of the deceased, accused 1 first flashed torch light on the deceased, while he was asleep on the cot. That, accused 2 closed the mouth of the deceased, when accused 3 held his legs. Accused 2 then stabbed the neck of the deceased. That, thereafter accused 3 cut off the private part of the deceased into pieces and threw it away and the private part pieces so cut were lying in the room. That, thereafter, accused 3 stabbed the back and all over the body of the deceased. That, he had also pierced the neck part of the deceased by a knife. That, the deceased with injuries all over his body died on the spot. That, thereafter, accused 1 had given all her gold jewelleries including 'mangalya chain' in the hands of accused 2 and all the accused persons had washed their hands with the water in the bucket. That, accused 1 sat on the floor of the kitchen. Accused 1 put inside her mouth a small towel. Accused 3 tied her hands and legs by means of a thread. That, thereafter, all the accused persons kept the door of house ajar and left the place to join P.W. 20 and P.W. 38, the driver and the cleaner of the car stationed near Mukunda theatre at Banaswadi. That, accordingly, they joined P.W. 20 and P.W. 38 and thereafter, they left Banaswadi at about 3.30 a.m. in the car driven by P.W. 20 and reached Madanapalli at about 6 a.m. or 6.30 a.m. P.W. 38 also sat in the car when it returned to Madanapalli. That, when accused 2 had gone to his house in Madanapalli, accused 3 had gone to his house and in the like way, accused 4 had returned to his room in Hotel Picnic, also at Madanapalli.
11. That, the day next at about 8 a.m., P.W. 1 the ASI of the Banaswadi Police Station, having received a phone message from the Police Control Room with regard to the incident of the above murder at Subbayyanapalya, went along with P.C. 3172, Thamanna and they found people collected in front of the house of the deceased. They found the door of the house of the deceased open. On entering inside the house, P.W. 1 and the above P.C. accompanying him found the neck of the deceased cut and he was lying with his face downward in the mid of pool of blood. The clothes found on the dead body were bloodstained. They found his legs tied by means of rope and a towel. In the kitchen room that was lying on the north side, they found accused 1 making gruelling noise. They found the hands and legs of the accused 1 tied by a rope and her mouth was closed by a towel. On calling by them, accused 1 did not respond and thereafter P.W. 1 untied the legs and the hands and removed the towel from her mouth and that she was found very weak and was not in a position to talk and reply to the queries of P.W. 1 and the P.C. and in that state, accused 1 was brought out and she was given water. Accused 1 thereafter gave her name as Vanaja and stated that she was the 'wife of deceased Amarnath'. It is further stated that she had identified the dead body of her husband. P.W. 1 found the private part of the deceased cut. P.W. 1 drafted P.C. 3132 to take accused 1 to Bowring Hospital. P.W. 1 and the P.C. found a big size tin box, wherein they found the name of the deceased written as 'Amarnath'. Thereafter, P.W. 1 had lodged a complaint before the PSI-P.W. 48 and on receipt of the same, P.W. 48 the Investigating Officer issued a FIR Ex.P.61 and sent a copy thereof to the jurisdictional Magistrate at 12.15 p.m. on the same day. That, P.W. 48 thereafter visited the spot together with the dog squad and the photographer. He had conducted inquest pancha-nama Ex.P. 2. He had also recorded the statements of P.W. 30, P.W. 6, P.W. 4, P.W. 3, P.W. 29 and other charge-sheet witnesses. He had also collected panchas and conducted the spot mahazar by P.W. 17 and further sent the dead body of the deceased for conducting post-mortem. That on the spot, he had collected M.Os. 1 to 20 and subjected the same to spot mahazar Ex.P. 62. That P.W. 48 had also sent accused 1 for medical examination to ascertain the fact as to whether accused 1 was subjected to rape. P.W. 48 got confirmed that no such circumstances were found on accused 1 with the medical report thereto received by bim. That, P.W. 48 had contacted the relatives of the deceased having collected the particulars of the deceased from the Army authorities as at Ex.P. 63. That, on 21-8-1993, the blood relatives of the deceased, P.W. 3-the father had reached Bangalore along with P.W. 7-Krishna Reddy, having come to know of the alleged incident of murder through the news item that had appeared in the local newspaper at Madanapalli. Thereafter, the dead body of the deceased was made over to them, they being the near relatives.
12. That, through the blood relatives, P.W. 48 had come to know the illicit relationship of accused 1 with accused 2 and therefore he immediately despatched his crime staff to Madanapalli to trace accused 2. P.W. 48, the Investigating Officer also went to Madanapalli on 5-9-1993 along with P.W. 36-PSI by name Narayanappa, then working at Bharathinagar Police Station. That, thereafter, accused 2 was apprehended by the crime staff of P.W. 48 at Madanapalli from his house at Krishna Nagar in Madanapalli. That, on the basis of his voluntary statement-Ex.P. 64, the Police seized gold 'thali' and 'thali gundus' and his bloodstained clothes and inland letter M.O. 42 to M.O. 48 under panchanama Ex.P. 17, from his house. That, accused 2 then led the police party to 'Picnic Hotel' in Madanapalli and pointed out accused 4, upon which the Police arrested accused 4 and on his voluntary statement, Ex.P. 65, A-4 produced gold ring-M.O. 50, his bloodstained clothes-M.Os. 52 and 53 and cigarette M.O. 51 found in his clothes. They also seized M.O. 49 a pair of shoes of accused 4. That, accused 2 and accused 4 thereafter led the Police party to Katirangana Kotai at a distance of about 40 kms. from Madanapalli to the house of accused 3 and accused 3 was thus arrested from his house. They also recorded his voluntary statement Ex.P. 66 and accused 3 produced M.O. 54 gold chain and the same was seized under Ex.P. 19. Accused 3 had further led the Police party of P.W. 48 to his brother's house at Madanapalli and produced his bloodstained clothes M.Os. 55 and 56 and a torch M.O. 24 and the same were seized under Ex.P. 20. That, in the meantime, a woman P.C. and other staff were sent to Naganakotai and they arrested accused 1 from her parents house and she was produced before P.W. 48 at about 1 p.m. on that day. She gave the voluntary statement Ex.P. 67. That, the Police party brought all the accused persons and further subjected the articles to P.Fs. Ex.P. 68 to Ex.P. 71 and returned to Bangalore. That, on 6-9-1993 at about 5.30 a.m. accused 1 took P.W. 48 and bis party to Bommasandra Village, and took them to the house of one Ashwini Kumar, her relative and produced suit-case from which she produced M.O. 28, a photograph showing accused 1 and the deceased and the said photograph was torn into two separate pieces and the same was seized under panchanama Ex.P. 10 in the presence of the panchas. That, thereafter, all the accused persons were produced before the Court. When accused 1 was remanded to judicial custody, accused 2 to accused 4 were taken to Police custody.
13. In the meantime, accused 4 had come forward to give confession statement and the same was recorded by P.W. 50-CMM, Bangalore City as at Ex.P. 77.
14. On completion of the detailed investigation, the Police have filed a charge-sheet as against all the accused persons for the offence punishable under Section 302 read with 34 of the IPC.
15. That, on committal to Sessions before the learned Sessions Judge, all the accused persons pleaded not guilty, whereupon to sustain the charge, the prosecution had examined P.Ws. 1 to 50. Out of them, the material witnesses are P.W. 1-Nanjundappa, the ASI who had visited the spot immediately on information with regard to the murder through the Police Control Room, P.W. 3-Rajanna, the father of the deceased, P.W. 4-Krishnappa, the landlord of the deceased, P.W. 7-Krishna Reddy, who had come down to Bangalore along with P.W. 3 on information with regard to the murder of the deceased, P.W. 9-Ramakrishna Reddy, who spoke about the illicit relationship of accused 1 with accused 2, P.W. 10-Sriramulu, a school teacher of Gnanodaya School, Madanapalli, P.W. 17-Dr. L. Thirunavakarassu who had performed the post-mortem on the dead body of the deceased and issued Ex.P. 21-post-mortem report, P.W. 20-driver of the car that was made use of for the purpose of the journey by accused 2 to accused 4 from Madanapalli to Bangalore at the first instance and further used by accused 2 to accused 4 for their return journey from Bangalore to Madanapalli, P.W. 21-Sriramulu, the taxi driver in Madanapalli who had introduced accused 2 and accused 4 to P.W. 20 and P.W. 28-Eswaramma, the elder sister of the deceased, P.W. 33-Vema Reddy, the paternal uncle of A-1, P.W. 36 the PSI of Banaswadi Police Station who had done part of the investigation also by visiting Madanapalli in connection with the detection of the crime, P.W. 38-the cleaner of the car, P.W. 15-Chennappa, the supplier in the Sambram Bar at Maruthisevanagar, Bangalore, P.W. 44-the Assistant Director of FSL Bangalore, P.W. 45-Vinayaka, a petty shop owner near Sambram Bar who had sold pans and cigarettes to the accused 2 to 4, P.W. 47-Chief Jailor, the witness for taking specimen handwriting of accused 1 inside the Central Jail, P.W. 48-the Investigating Officer and PSI of Banaswadi Police Station who had done the larger part of the investigation and filed the charge-sheet and lastly P.W. 50, the District and Sessions Judge, Bangalore city who had recorded the confessional statement of A-4 at the instance of the committal Court as at Ex.P. 77 when he was functioning as CMM, Bangalore City.
16. In addition to the oral evidence of the above witnesses, the prosecution had also produced as many as 88 documents marked as Exs. P. 1 to P. 88. Among them, the relevant are Ex.P. 1-the complaint by P.W. 1, Ex.P. 2 the inquest panchanama, Ex.P. 3-the spot mahazar, Ex.P. 4-the panchanama for the seizure of M.Os. 21 to 23, the incriminating inland letters written by accused 1 to the deceased, Ex.P. 12-the mahazar for the sample handwriting of accused 1 marked as M.Os. 30 to 38, Ex.P. 13-the sample handwriting of accused 1 in M.Os. 39 to 40, Ex.P. 17-the sample handwriting of accused 1 in M.Os. 41 to 48, Ex.P. 18-the sample handwriting of accused 1 in M.Os. 49 to 53, Ex.P. 20 the mahazar for M.Os. 24, 55 and 56, Ex. P. 21-the post-mortem report and Ex.P. 22-the opinion issued by P.W. 17-Dr. L. Thirunavakarassu, Ex.P. 31 the FSL report of P.W. 42, Raghavendra Rao, the Assistant Director of FSL with regard to the bloodstained M.Os., Ex.P. 32 the certificate by handwriting expert and Assistant Director of FSL, P.W. 44, Ex.P. 33 detailed opinion by P.W. 44 in support of Ex.P. 32, Exs.P. 35 to 60 the photographs of scene of offence, Ex.P. 61 the FIR, Exs. P. 64 to P. 67 the voluntary statement of accused 2, accused 4, accused 3 and accused 1 respectively, Ex.P. 77 the confession statement recorded by P.W. 50, the CMM, Bangalore, Ex.P. 87 Serological Report and Ex.P. 88 the sketch of scene of the offence drawn by the PWD Engineer. In addition to the above, the prosecution had also produced 83 M.Os. Among them, the relevant are M.O. 3 the steel knife, M.O. 4 the iron knife, M.O. 16 yet another knife, M.Os. 21 to 23 the three inland letters written by A-1 to the deceased, M.O. 24 the torch light, M.O. 28 the photographs of the deceased with the accused 1 in two pieces, M.O. 29 the iron rod, M.Os. 30 to 39 the sample handwriting, M.Os. 41 and 42 gold 'thali', M.Os. 43 and 44 gold 'gundus', M.O. 45 the 'machchu', M.Os. 46 to 47, the bloodstained clothes of the accused 2, M.O. 50 the gold ring, M.Os. 52 and 53 the bloodstained pant and shirt belonging to accused 4, M.O. 54 the gold chain, M.Os. 55 and 56 the bloodstained clothes of the accused 3 and M.O. 83 the sample handwriting of accused 1.
17. That the learned Sessions Judge on appreciation of the material evidence on record had passed the impugned judgment and order of conviction as against the accused 1 and 2, whereas he had also passed an order of acquittal as against the accused 3 and 4.
18. On going through the impugned judgment and further the order of conviction as well as acquittal as stated above, it is clear therefrom that there was no direct evidence as against the accused persons for the offence under Section 300 and all that what was on the record of the learned Sessions Judge was only the circumstantial evidence. In the course of the impugned judgment, the learned Sessions Judge had recorded the following circumstantial evidence warranting on the one hand the conviction of the accused 1 and 2 and warranting on the other acquittal of the accused 3 and 4. The circumstances that occurred on the record as against accused 1 and 2 according to the learned Sessions Judge are as hereunder:
(i) That, the accused 1 having married the deceased had total hatredness towards him and she developed vengeful attitude as against the deceased, the reason mainly being that she was having an affair with the accused 2 earlier to marriage and further subsequent to the marriage and that was possible for them as both of them were serving as teachers at Madanapalli.
(ii) That, M.Os. 21 to 23, the three incriminating inland letters written by accused 1 to the deceased were proclaiming loud as to the contempt she had towards the deceased and further the vengeance developed by her towards him even to the extent of writing to him that if time comes she would put an end to his life.
(iii) That, the prosecution had proved that M.Os. 21 to 23 were in fact the letters written by accused 1 to the deceased and the prosecution had proved that fact in examining the Assistant Director in FSL and further the handwriting expert P.W. 44 and further marking in his evidence Ex.P. 32 the certificate and his detailed opinion in support of his opinion Ex.P. 32 as at Ex.P. 33 and that the said opinion was given by P.W. 44 with reference to the sample handwriting of the accused 1 marked as M.Os. 30 to 38, 57 to 65, 66 to 75 and M.Os. 90 to 92.
(iv) That, the accused 1 being the wife of the deceased was with him in the house and the alleged incident of murder of her husband had taken place right in her presence and as such, she was knowing every bit of the information as to how her husband was done to death and despite that in her statement under Section 313 of the Cr. P.C., she had only stated that her hands and legs were tied and she did not know anything else.
(v) That, accused 2 to accused 4 were very well identified both by P.W. 20, the driver of the car bearing registration No. AP:03 B/2349 and further identified by P.W. 38, the cleaner of the said car when ail the three were travelling from Banaswadi to Madanapalli and further when accused 2 and accused 4 travelled from Madanapalli to Banaswadi and further that accused 2 and accused 4 were further identified by yet another witness P.W. 21 Sriramulu, also a driver at Madanapalli as he had introduced both accused 2 and accused 4 on the day of their travel from Madanapalli to Banaswadi.
19. The learned Counsel appearing for the accused 1, Sri Thimmarayappa had formulated the following points in his argument:
(i) That, the genesis of the occurrence of the very offence was suppressed by the prosecution.
(ii) That, the evidence of P.Ws. 8, 15, 20, 21, 25, 26, 28, 38 and 45 cannot be relied upon in the absence of the Test Identification Parade.
(iii) The handwriting expert on which the prosecution had heavily relied upon is the most weak type of evidence.
(iv) The witnesses like P.Ws. 4, 23, 33 and 34 who were closely acquainted with the handwriting of the accused 1 were not examined on that aspect of the case.
(v) That, the production of the three inland letters M.Os. 21 to 23 alleged to have been written by the accused 1 was recovered from P.W. 3 after the lapse of 25 days and as such, the case of the prosecution in this regard was highly suspicious and that the said M.Os. 21 to 23 were fabricated and planted documents.
(vi) That, the evidence of P.Ws. 3, 7 and 9 was highly contradictory and as such was totally unreliable.
(vii) That, the investigation in the case was tainted.
(viii) That, the charges framed as against the accused 1 was defective.
(ix) That, in passing the impugned judgment, the learned Sessions Judge had not properly formulated the points for his consideration.
20. To elaborate the point that the very genesis of the occurrence was suppressed by the prosecution, it was argued by Sri Thimmarayappa that P.W. 1 when he visited the spot of incident had found accused 1 in the kitchen having been tied with rope both of her hands as well as legs and that she was gagged by means of a towel as the said towel was put into her mouth and that the accused 1 was found groaning and she was found in a very weak condition and it is for that reason P.W. 1 had sent accused 1 to the Hospital for getting her examined as to whether she was subjected to rape. Incidentally, it was pointed out by Sri Thimmarayappa that though accused l was subjected to medical examination and a medical certificate thereto was sent by the Medical Officer who had conducted the bodily examination of accused 1, the said Medical Certificate was suppressed by the prosecution. Yet another circumstance in this regard highlighted by Sri Thimmarayappa was that P.W. 1 having found footprints of military boots on the floor of the house, the prosecution did not investigate into that angle of the case at all. According to him, in the facts and circumstances of the case, it could not be ruled out that the deceased being a member of the military service, it was quite possible that he had some enemies in the place of his work and that the deceased might have been murdered by some military personnel. Hence, according to him, the prosecution had suppressed the very genesis of the occurrence of the case and furthermore the investigation in the case was tainted one as the Police had misdirected themselves to link up the murder of the deceased with the so-called intimacy prior to marriage and illicit relationship of the accused 1 with the accused 2 subsequent to marriage.
21. While turning to the three inland letters M.Os. 21 to 23 stated to have been written by the accused 1 to the deceased, it was argued by Sri Thimmarayappa that the said piece of evidence were all weak type of evidence and the learned Sessions Judge despite that being the position in law, had totally relied upon the same to hold that that was one of the circumstances connecting the guilt of the accused 1. In this regard it was pointed out by Sri Thimmarayappa that P.W. 3 in his evidence had deposed that the said letters were addressed by the accused 1 when the deceased was at Delhi and that the said letters were made over to him when the deceased had come down from Delhi to his place of residence at Shivadigrama of Chittoor and that the said letters were placed before the Panchayat that was held in the place of the accused 1 at Naganakotai, earlier to her coming down to Bangalore. While referring to the respective dates of M.Os. 21 to 23 and the addresses therein, Sri Thimmarayappa pointed out that the said letters appeared to have been addressed to the deceased to his residential address at Bangalore. Therefore, Sri Thimmarayappa argued that P.W. 3 was virtually lying before the learned Sessions Judge and as such his evidence could not be believed. Yet another aspect of the case he argued in this regard is that M.Os. 21 to 23 were produced by P.W. 3 after a lapse of 25 days of the incident and as such according to him, the said M.Os. were all highly suspicious documents as they were all fabricated by the prosecution for the purpose of the case.
22. While adverting to the evidence on record produced by the prosecution before the learned Sessions Judge, it was also argued by Sri Thimmarayappa that in the absence of the direct evidence, the attempt on the part of the prosecution was to prove the guilt of the accused only by circumstantial evidence. In this context it was submitted by him that the evidence of the material witnesses P.Ws. 3, 8, 15, 20, 21, 25, 26, 28, 38 and 45 was of no consequence to the prosecution in the absence of failure on the part of the prosecution to hold a test identification parade. According to Sri Thimmarayappa, in the case in hand, it was a legal necessity for the prosecution to hold the test identification parade as the admitted case of the prosecution was that all the material witnesses who had identified the accused 2 to 4 had seen them momentarily and in the said circumstances, according to him, holding of test identification parade was most warranting.
23. While turning to the evidence of P.Ws. 4, 23, 33 and 34, it was argued by Sri Thimmarayappa that the said witness though were very well acquainted with the handwriting of the accused 1, none of them was examined to speak on that aspect of the case and that, the prosecution in producing a notebook M.O. 25 and further examining P.W. 10, one Sriramulu, a teacher of Gnanodaya School at Madanapalli before the learned Sessions Judge failed to prove that the disputed inland letters in M.Os. 21 to 23 were all in the handwriting of the accused 1 as P.W. 10 had turned hostile to the prosecution.
24. Therefore, Sri Thimmarayappa submitted that the accused 1 was falsely implicated in the case and she was innocent of the charge. Hence, he prayed that the impugned judgment and order of conviction insofar as the same related to the accused 1 be set aside in allowing her appeal.
25. The learned Counsel for the appellant 1 Sri Thimmarayappa had cited the following decisions in support of his contentions:
(1) Magan Bihari Lal v State of Punjab. (2) Bhagwan Kaur v Shri Maharaj Krishan Sharma and Others.
(Both on the point that evidence of handwriting expert is generally of a frail character and as such requires greater caution to base conviction.) (3) Associated Cement Company Limited v Keshvanand .
(4) Suraj Mal v State (Delhi Administration).
(Both on the point of appreciation of evidence - where testimony of the witnesses which is inseparable and indivisible was disbelieved in respect of some accused, it could not be used to convict any other accused.) (5) Sharad Birdhichand Sarda v State of Maharashtra.
(6) Harendra Narain Singh v State of Bihar.
(Both on the point that circumstantial evidence should be conclusive and effect of falsity of defence plea - accused entitled to benefit of doubt -nature of circumstances admissible circumstances must have some proximity to relationship about the actual occurrence).
(7) State of Andhra Pradesh v Gowthu Ranghunayakulu and Others .
(On the point that when the formation of the points for decision were not done in accordance with Section 354 of Cr. P.C. judgment passed by the High Court to convict the accused held as the one not in accordance with law.) (8) Shew Mongal Singh and Others v State.
(On the point that, mere presence of a person at the place of occurrence is of no consequence and no active participation in the offence, person held not liable.) (9) Krishna Govind Patil v State of Maharashtra .
(On the point of common intention-conviction under Section 302 read with Section 34 prerequisite discussed.) (10) Rahim Beg and Another v State of Uttar Pradesh.
(On the point that when Investigating Officer deviating from truth even on a minor point, implicit reliance should not be placed on his testimony.) (11) Rampal Pithwa Rahidas and Others v State of Maharashtra.
(On the point that evidence of an approver must be corroborated in material particulars by direct or circumstantial evidence.) (12) Kanan and Others v State of Kerala.
(On the point of, failure to conduct T.I. parade in respect of accused unknown to the witnesses, identification by such witness of the accused before the Court raises a serious doubt and their testimony must be excluded.) (13) Yudhistir v State of Madhya Pradesh .
(On the point that when a particular fact deposed by a witness does not find mention both in the FIR and in the statements recorded under Section 161 of the Cr. P.C., it has to be construed as an improvement and the same should not be considered to implicate the accused.) (14) Shrishail Nageshi Pare v State of Makarashtra.
(On the point that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration from other independent sources; however, it cannot be basis for convicting the co-accused.)
26. The learned Counsel appearing for the accused 2 to 4 Sri Tomy Sebastian assailed the judgment and order of conviction of the accused 2 and on the other hand he supported the same insofar as the same related to the acquittal of the accused 3 and 4. He had argued that the accused 2 came to be falsely implicated just for the reason that he was working along with the accused 1 in a school at Madanapalli and thus had acquaintance with the accused 1. According to him, even if it is taken that the accused 2 was having acquaintance with the accused 1, it could not be complained of to say that the accused 2 had illicit intimacy with the accused 1, for it was quite natural for them to have acquaintance as they were colleagues working in one and the same institution, that too as teachers. The next point he had argued was with regard to the failure on the part of the prosecution to prove the recovery of the jewels from the hands of the accused 2 to 4. He further argued that neither P.W. 20 who is stated to have taken the accused 2 and 4 to Bangalore and further taken back the accused 2 to 4 from Bangalore to Madanapalli, nor P.W. 21 who is stated to have introduced him to P.W. 20 at Madanapalli Taxi stand had occasion to identify them with certainity and therefore, according to him, it was necessary for the prosecution to hold the Test Identification Parade for the purpose of identifying the accused 2 to 4. He further argued that in the similar way P.W. 38, the cleaner of the car and P.W. 15, the supplier in the Sambram Bar who were stated to have served food to the accused 2 to 4 and further by P.W. 45 from whom the accused 2 to 4 stated to have purchased pan and cigarettes also could not identify the accused 2 to 4 as they had no occasion to observe their faces and facial features and in the said circumstances according to Sri Sebastian, holding of Test Identification Parade was a legal necessity and in the instant case it is not in dispute that such a Test Identification Parade was never held by the prosecution. Hence, he submitted that it was erroneous on the part of the learned Sessions Judge to record an order of conviction as against the accused 2. It was also argued by him that, as the learned Sessions Judge had given the benefit of doubt to the accused 3 and 4, he would have extended the very same benefit to the accused 2 in the said facts and circumstances of the case.
27. Sri Sebastian, while turning to the confession statement Ex.P. 77, argued that the learned Sessions Judge had rightly rejected the so-called confession statement when P.W. 50-the learned CMM (later the District Judge at the time of giving the evidence before the Sessions Court) had clearly stated therein that Ex.P. 77 was not the original of the confession statement and that it was only an extract of the original.
28. Another aspect of the case that was argued by Sri Sebastian was with regard to the non-seizure of the vehicle in question by the I.O. In this regard, Sri Sebastian also pointed out that in the evidence of P.W. 21 he had clearly deposed that it was a private taxi and that it was not a public carrier. He also drew our attention to portion of Ex. D.l(a) marked in the defence and the same is the portion of the remand application wherein there is reference for an Ambassador car bearing registration No. AP-03/7.5103. He had also argued that in defence, the accused persons also produced the Registration Certificate in respect of the vehicle bearing Registration No. AP-03.B/2349 and the same is not of an Ambassador car but of some other vehicle. With reference to the said Registration Certificate, Sri Sebastian submitted that there existed no Ambassador car bearing the said registration number and as such, it was quite doubtful whether P.W. 20 had carried accused 2 to 4 to Bangalore and accused 2 to 4 back to Madanapalli as the prosecution had contended before the learned Sessions Judge. Incidentally, he had also pointed out that this Court cannot forget for a moment that the owner of the so-called vehicle in question was also not examined by the prosecution before the learned Sessions Judge. While adverting to the evidence of P.W, 4 and the evidence of P.W. 48, the I.O., it was argued by Sri Sebastian that when P.W. 4 in his evidence had deposed that the vehicle was in the custody of the Police, P.W. 48, the I.O. denied such a possession of the vehicle by them.
29. To sum up his arguments, Sri Sebastian submitted that there was not enough evidence on record to hold that the accused 2 was guilty of the offence and therefore he prayed that the conviction and sentence passed by the learned Sessions Judge in the impugned judgment and order of conviction as against him be set aside in allowing the appeal of the accused 2. He had also prayed that the impugned judgment and order of acquittal passed by the learned Sessions Judge as against the accused 3 and 4 be confirmed in rejecting the appeal of the State.
30. On the other hand, the learned State Public Prosecutor while opposing the first appeal filed by the accused 1 and 2 argued that the learned Sessions Judge had rightly appreciated the material evidence on record and he had therefore rightly recorded an order of conviction as against the accused 1 and 2. He therefore supported the impugned judgment and order of conviction insofar as the same related to the accused 1 and 2 herein.
31. While turning to the appeal filed by the State in the second appeal, the learned SPP argued that there was no justification on the part of the learned Sessions Judge to record an order of acquittal as against the accused 3 and 4, particularly when the material evidence on record had been accepted by him for one set of accused persons, whereas he had not in respect of yet another set of accused persons. It is also his submission that the accused 2 being the paramour of accused 1 had taken the help or assistance of the accused 3 and 4, they being his associates known for quite some time and all the three had joined the accused 1 in the house of the deceased with a well set plan chalked out in advance by the accused 1 and 2, as the accused 2 was very much available on phone in Gnanodaya School at Madanapalli as he was working in the said school as a teacher and that the accused 1 had constant contact with the accused 2, particularly to do away with the deceased. Sri Nanjundaiah had also argued that though in the instant case there was no direct evidence for the committal of the offence by the accused persons, the prosecution had proved beyond all reasonable doubt all the circumstantial evidence to connect the guilt of the accused. In this regard, while adverting to the evidence of P.W. 20-the driver of the car who had driven the accused 2 and 4 at the first instance from Madanapalli to Bangalore and further driven back the accused 2 and 4 together with the accused 3 from Bangalore to Madanapalli after the committal of the offence, had identified the accused 2 to 4 well as they had sufficiently long time at their disposal to do that; that apart, according to him, the said circumstantial evidence was also further corroborated by yet another witness P.W. 21 (who in fact was approached by P.W. 2 at the first instance for hiring his car) who bad deposed before the learned Sessions Judge that it is he who had introduced P.W. 20 to the accused 2 as on that day, his car was under repair and as such, he had made over his business to P.W. 20. Sri Nanjundaiah had also in this context pointed out that both the witnesses No. 20 and 21 were taxi drivers stationed at Madanapalli and they had no axe to grind as against the accused 2 to 4 to falsely implicate them. Sri Nanjundaiah had also submitted that yet three other witnesses, one Shabir Basha who was examined as P.W. 38 being the cleaner of the car driven by P.W. 20, P.W. 15 the server of Sambram Bar and further P.W. 45-Vinayak, the petty shop owner (from whom the accused 2 and 3 had purchased pan and cigarettes) had also identified the accused 2 to 4. While adverting to the arguments of the learned Counsel for the accused 1 to 4, Sri Thimmarayappa and Sri Sebastian that in the instant case the prosecution would have held the test identification parade to get the accused 2 identified, Sri Nanjundaiah argued that such a action did not warrant at all as the accused 2 to 4 were seen by the witnesses particularly P.W. 20, 21 and 38 who had sufficient time at their disposal to see the faces and facial features of the accused 2 to 4. Therefore, he submitted that such an argument advanced by the learned Counsel for the accused 1 to 4 was totally fallacious.
32. While turning to the argument of Thimmarayappa, the learned Counsel appearing for the accused 1, Sri Nanjundaiah argued that there was very strong circumstance against the accused 1 also as it was borne on evidence, both oral and documentary that the accused 1 and accused 2 were teachers working in one and the same school for about one and a half years and that they were in intimate terms and that later accused 2 turned to be the paramour of accused 1. In this regard, he had referred to the evidence of P.W. 3, the father of the deceased, evidence of P.W. 7, a person also of Madanapalli who had attended the marriage of the deceased with accused 1 and further participated in the Panchayat and further the evidence of P.W. 9 also of Madanapalli who had deposed before the learned Sessions Judge that he had witnessed the accused 1 and 2 moving very closely in Madanapalli town, at times seen them in cinema talkies too and that he had informed the said illegal relationship between the accused 1 and 2 to P.W. 3-the father of the deceased. According to Sri Nanjundaiah, the prosecution had also proved to the hilt that the relationship between the accused 1 and the deceased was totally strained because of the illicit intimacy the accused 1 had with the accused 2 earlier and later to her marriage with the deceased and that the prosecution had proved its case in proving M.Os. 21 to 23, the three incriminating inland letters written by accused 1 to the deceased while he was in Bangalore. Sri Nanjundaiah had taken us literally through the contents of the said M.Os. 21 to 23, wherein the accused 1 had written to the deceased that she had total dislike and hostility towards him, even to say that she was ashamed to call the deceased as her husband, that, he was an impotent, that, the accused 1 would be coming down from Madanapalli to join the deceased only to take revenge on him, that, it was true that she had given herself to one Reddy (in the circumstances, according to SPP, referrable only to the accused 2). With reference to the same, Sri Nanjundaiah argued that nothing more was required for the prosecution to prove before the learned Sessions Judge that the accused 1 had ill-will as against the deceased and that was due to the reason that the accused 2 was her paramour and she was happy with him. It was also pointed out by Sri Nanjundaiah that M.Os. 21 to 23 though disputed by the learned Counsel for the accused 1, Sri Thimmarayappa, the prosecution had proved the same in examining the handwriting expert P.W. 44, one Sri C. Ashwathappa, Assistant Director and handwriting expert working in Forensic Science Laboratory, Bangalore and further in marking the sample handwriting of the accused 1 by examining P.W. 18-Gangappa, the Chief Jailor of the Central Jail, Bangalore and further P.W. 19, the Warden of the Central Jail, Bangalore who both spoke about the sample handwriting of the accused 1 marked as M.Os. 21 to 23, M.Os. 57 to 65, M.Os. 66 to 74 and M.Os. 75 to 83 taken on three different sets on different occasions.
33. It was also argued by Sri Nanjundaiah that unless the accused 2 had the access to the house of the deceased through accused 1, the accused 2 to 4 could not get ingress to the house of the deceased at all and it is only because of the allowance of the entry of the accused 2 to 4 into the house of the deceased by the accused 1, the gruesome murder of the deceased had taken place in the manner the prosecution had presented the case before the learned Sessions Judge. Therefore, he submitted that the learned Sessions Judge had rightly convicted the accused 1 and 2 on appreciation of the circumstantial evidence occurred against the said accused persons. Hence, his submission is that there is no merit whatsoever in the first appeal filed by the accused 1 and 2.
34. Sri Nanjundaiah next found fault with the order of acquittal recorded by the learned Sessions Judge in passing the impugned judgment insofar as the same related to the accused 3 and 4. It is his submission in this context that, it is borne on evidence that the accused 2 had taken the accused 3 and 4 together from Madanapalli to Bangalore and when the car left Madanapalli the cleaner - P.W. 38 was also present to travel to Bangalore and that it is also in the evidence on record that on his way back after the committal of the offence accused 2 to 4 travelled together the next day morning from Bangalore to Madanapalli in the car of P.W. 20 accompanied by P.W. 38. He had also pointed out in this regard that when the evidence of P.Ws. 20 and 21 was accepted for the purpose of basing conviction as against the accused 2, there was no good reason for the learned Sessions Judge not to believe the same as against the accused 3 and 4. It is also his submission that the gold jewels that was parted with by the accused 1 to the accused 2 were found in the possession of the accused 2, 3 and 4 as spoken to by the witness for the seizure mahazar-P.W. 16.
35. Sri Nanjundaiah then took us through Ex.P. 77 the confessional statement of the accused 4 recorded by P.W. 50, the CMM (when he was examined, he was City Civil and Sessions Judge, Bangalore City). While taking us through the said confessional statement-Ex.P. 77, it was pointed out by Sri Nanjundaiah that the same was- recorded by the learned Sessions Judge on two different dates and that the learned Sessions Judge before recording the same had also cautioned the accused 4 that he was not bound to give such a confessional statement and further that in the event of such a statement being given by him, the same would be used against him and that despite the caution by P.W. 50, the accused 4 came forward to give the confessional statement as per Ex.P. 77 (Ex.P. 77(a) was the translation of Ex.P. 77). Sri Nanjundaiah also submitted that the learned Sessions Judge had recorded the confessional statement Ex.P. 77 in Kannada language as it was given before him in Tamil language, the language of the accused 4. While referring to the evidence of P.W. 50 before the learned Sessions Judge that Ex.P. 77 was only an extract and that the original was recorded by him in the order sheet maintained by him for the purpose of recording the confessional statement, Sri Nanjundaiah submitted that the said part of the evidence as incorrect, for Ex.P. 77 was in fact the original and there was no such original confession statement in the order sheet as deposed by P.W. 50. It was also argued by him that the confessional statement-Ex.P. 77 was recorded by P.W. 50 in substantial compliance of Section 164 of the Code of Criminal Procedure. To meet the point that Ex.P. 77 confessional statement was not signed by accused 4 as required under sub-section (2) of Section 164, Sri Nanjundaiah argued that the same would be of less consequence when P.W. 50 on oath had deposed before the learned Sessions Judge that Ex.P. 77 was recorded by him as the statement given by the accused 4 and that was recorded by him on oath. Therefore, he prayed that the impugned judgment and order acquitting the accused 3 and 4 be set aside in the instant appeal and that this Court be pleased to hold the accused 3 and 4 also guilty of the offence under Section 300 read with Section 34 and further be pleased to sentence them for the said offence in consonance with law.
36. In support of his argument, Sri Nanjundaiah had also cited before us the following decisions:
(1) Jadunath Singh and Another v State of Uttar Pradesh.
(On the point that absence of test identification is not fatal in all cases and that the test identification parade are necessary in case of doubt as to the identification.) (2) State of Uttar Pradesh v M.K. Anthony.
(3) State (Delhi Administration) v Vishwanath Lugnani and Others.
(4) Shivaji Sahebrao Bobade and Another v State of Ma-harashtra.
(The above decisions at Sl. Nos. 2 to 4 are on the point, how the evidence by the rustic witnesses has to be appreciated by the Court.) (5) Pyare Lal Bhargava v State of Rajasthan.
(In para (7) therein the Supreme Court held that a retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made.) (6) Shankaria v State of Rajasthan.
(It is held therein that if the confessional "statement is voluntarily and truthfully made, is an efficacious proof of guilt, the Court can rely upon the same, provided the confession was firstly voluntary and secondly, the same was true and trustworthy.) (7) Henry Westmuller Roberts v State of Assam.
(In para (32) it was held therein that in the event of a confessional statement retracted, but in the event that they are generally corroborated by the circumstantial evidence in ample measure the confessional statement could be relied upon by the Court.) (8) Ratan Gond v State of Bihar.
(On the point that a statement which was not recorded in judicial proceedings is not admissible in evidence as a confessional statement.)
37. To sum up, it was submitted by Sri Nanjundaiah that, when the first appeal in Cri. A. No.159 of 1998 filed by the convict-accused 1 and 2 is liable to be dismissed in confirming the impugned judgment and order of conviction and sentence insofar as the same related to the said accused persons, the second appeal in No. 430 of 1998, the one preferred by the State is liable to be allowed by setting aside the impugned judgment and order of acquittal insofar as the same related to the accused 3 and 4.
38. The learned Counsel for the accused 1. Sri Thimmarayappa as well as the learned Counsel for the accused 2, Sri Tomy Sebastian vehemently argued that the above circumstantial evidence was not at all sufficient to convict and sentence the accused 1 and 2.
39. The learned Counsel for the accused 1 had also argued that the prosecution had miserably failed to prove that M.Os. 21 to 23-inland letters were written by the accused 1 to the deceased. In this context, he has drawn our attention to the evidence of P.W. 7 who in his evidence had stated that the 3 letters were shown to him before the alleged Panchayat stated to have taken place at Naganakotai, the place of the accused 1. According to Sri Thimmarayappa, the said evidence was palpably false, for M.Os. 21 to 23 according to the prosecution were the letters alleged to have been written by accused 1 to the deceased to his Bangalore address and that all the three letters had come into existence only subsequent to the alleged Panchayat at Naganakotai. To some extent, there is some force in the argument of Sri Thimmarayappa in this regard, for it is true that the said letters were written by the accused 1 to the deceased while he was at Bangalore in the house of P.W. 5 and all were posted to the deceased showing his employer's address at No. 10 Depot, MEG and Centre, Bangalore. In our considered view, for that reason alone, M.Os. 21 to 23 cannot be rejected. The said letters were also spoken to by P.W. 3-the father of the deceased as well. It is in the evidence of this witness i.e., P.W. 3 that these letters were found in the house of the deceased and it is those letters he made over to the Police during the course of investigation. Sri Thimmarayappa had also argued in this regard that the said documents were all got up documents by the prosecution for the purpose of the case. This argument does not appeal to us for the reason that all the 3 letters bore the postal seals and they were differently dated even setting out the station as 'Naganakotai', the station of the accused 1 before coming down to Bangalore. When M.O. 21 was dated 19-4-1993, M.O. 22 and M.O. 23 were dated 9-4-1993 and 5-4-1993 respectively. Yet another important seal that we have observed in all these letters are of the Military Office, where the deceased was working at the relevant point of time. If it was true that the prosecution had got up these documents for the purpose of the case as against the accused persons, the seals of the delivery Post Office of the deceased as well as the seals of the Military Office where the deceased was working would not have been borne thereon at all. Therefore, it appears to us that all these M.Os., M.Os. 21 to 23 incriminating inland letters were addressed to the deceased in the normal course of event. That apart, the same was produced by P.W. 3-the father of the deceased and it is in his evidence that he had collected them from the house of the deceased, of course, the same was produced by P.W. 3 after 25 days after the incident of murder as pointed out by the learned Counsel for the accused 1. Such a situation appears to be quite natural as P.W. 3 and P.W. 7 reached Bangalore 2 or 3 days later to the incident as they came to Bangalore on seeing the news item thereto that appeared in the local paper at Madanapalli and that P.W. 3 had to attend to the job of collecting the dead body of the deceased, attend to cremation, last rites, etc., in his place and in the said circumstances, quite possible that after attending to all the above, he might have visited the house of the deceased to take his belongings and in the said facts and circumstances, it is but natural that P.W. 3 had produced the said letters 25 days after the incident of murder. Hence, we reject the said limb of the argument of Sri Thimmarayappa also.
40. Now the point is, whether these letters were written by the accused 1 to the deceased at all. It is relevant to observe in this context that in the very address set out in the outer part of M.O. 21, the way in which the initial 'P' and the word 'Vanaja' had been written are in a way how the accused 1 had affixed her signature on the records (in the statement recorded when charge was framed) of the learned Sessions Judge. Therefore, we are not left with any doubt that M.Os. 21 to 23 directly connect the accused 1; that apart, even the contents of the said M.Os. go to show that the accused 1 was having total hostility as against her deceased husband and she had gone to the extent of calling him as an impotent and not to be called as a husband and further it was stated therein that she would be coming down to Bangalore to see the end of his life and that she would return on fulfilling that intention of hers.
41. There is yet another strong circumstance to show that the accused 1 was directly involved in the offence. That circumstance is that, she was found in the kitchen with her legs and hands tied by the rope and her mouth was gagged by means of a bath towel and that she was found very weak and feeble when the dead body of the deceased was found lying on the cot in the mid of a pool of blood as deposed by P.W. 1, the A.S.I. of the jurisdictional police station who visited the spot immediately after he received a phone message from the Police Control Room at about 8.45 a.m. on the day of incident, i.e., 29-8-1993. That the dead body of the deceased was found in the hall measuring 8' x 10' and from that hall there are two entrances, one to the kitchen on the one side and another to the bathroom on the other as per scene of occurrence sketch at Ex.P. 88. From the said facts and circumstances, it is obvious that the accused 1 was the best person to speak as to what had come on the deceased and herself to be found in the above state of affairs. But interestingly enough, in the statement recorded by the learned Sessions Judge under Section 313 of the Cr. P.C. as against the question No. 50 posed by the learned Sessions Judge as to whether accused 1 had anything to say about, she had simply stated that she had nothing to say about. It therefore appears to us that the accused 1 was deeply involved in the offence; that apart, as argued by the learned State Public Prosecutor, the accused 2 to 4 would not have entered the house, had they not been let in by the accused 1 at the relevant point of time. Hence, we have got no hesitation to hold that the learned Sessions Judge had rightly held accused 1 guilty and accordingly convicted her and sentenced her by appreciating the strong circumstantial evidence occurring against her.
42. The learned Counsel for the appellant in the first appeal Sri Thimmarayappa had cited a good number of decisions, more fully set out in para 25 above. Having gone through the same, we do not think any one of those decisions is of assistance to the accused 1. In the facts and circumstances of the case before us, we do not propose to advert to any of the decisions Sri Thimmarayappa had cited before us.
43. Now we turn to the case of the second accused in the appeal. The learned Counsel for the said accused Sri Tomy Sebastian in his argument mainly contended that holding of test identification parade to identify this accused and further non-seizure of the car driven by P.W. 20 were fatal to the case of the prosecution. But in the light of the above incriminating evidence that occurred against the accused 2, we are not inclined to endorse that argument of Sri Sebastian, the reason being that accused 2 was very well identified by P.W. 20, the driver of the car, P.W. 38-the cleaner of the car, P.W. 15-the server in the Sambram Bar and further P.W. 45-the owner of the pan shop near the Sambram Bar. One cannot forget here for a moment that identification of accused 2 was very naturally done by the said witnesses as the chain of events as to travelling of the said accused with accused 2 and 4 from Madanapalli to Bangalore and back and further consuming of food and liquor in above Bar and purchasing of beeda and pan in the pan shop of P.W. 45 had taken place within a course of 14 hours as accused 2 and 4 left Madanapalli at about 4.30 p.m. on 28-8-1993 and that after the committal of the offence in the house of the deceased, the accused 2 to 4 had returned to Madanapalli by about 5.30 or 6 a.m. on the following day as deposed by P.W. 20 before the learned Sessions Judge and that the accused 2 to 4 were rounded up by the Police within the course of next one week as all the accused were arrested at their respective places in and around Madanapalli in Andhra Pradesh on 5-9-1993 at one go. It is in the evidence on record that accused 2 at the first instance led the Police party of P.W. 48-the Investigating Officer to the house of accused 3 and he in turn at the second led to the hotel of the accused 4 and there, accused 2 to 4 were rounded up in the first round and that thereafter accused 1 was rounded up. It is to he observed here that the accused 2 was arrested by the Police on information by P.W. 3, the father of the deceased with regard to his illicit relationship with accused 1 earlier to and subsequent to the marriage of accused 1 with the deceased and that it is he who had taken the Police to the accused 3 at the first instance and accused 4 at the second. That was spoken to both by the I.O. P.W. 48 as well as P.W. 16-the mahazar witness. It is also conspicuous to observe further here that M.O. 54-gold chain recovered from the house of the accused 3 was seized by the Police under panchanama Ex.P. 19 and that M.O. 54 was a gold chain belonging to the accused 1, very well identified by P.W. 28-the sister of the deceased. The learned Sessions Judge during the course of the judgment had come to the conclusion that in examining P.W. 16 the prosecution had not proved the recovery of M.Os. 41 to 48 from the accused 2, but that observation we do not think could be applied insofar as the recovery of M.O. 54-gold chain, M.O. 55-the bloodstained pant and M.O. 56-the bloodstained shirt from the house of the accused 3 and further recoveries of a pair of shoes-M.O. 49, one gold ring-M.O. 50, cigarette packet M.O. 51 and further the recovery of the bloodstained pant-M.O. 52 and blood stained shirt-M.O. 53 from the accused 4, for the said recoveries were well spoken to by P.W. 16 and that those recoveries were made by the Police on showing of accused 3 and 4 by accused 2. Therefore, it also appears to us that the accused 2 was the main man involved in the offence.
44. Yet another circumstance the learned Sessions Judge had observed is that the accused 2 was found moving in the association of the accused 1 earlier to and subsequent to her marriage with the deceased and as the said facts were very well spoken to by the father of the deceased-P.W. 3 as well as P.W. 9 who had also not only attended the marriage of the accused 1 with the deceased, but also attended to the Panchayat that was held in the house of the accused 1 at Naganakotai, the place of accused 1, to settle the dispute between the accused 1 and the deceased. Therefore, the question of identification of the accused 2 by holding a test identification parade as argued by the learned Counsel Sri Sebastian and further seizure of the car was of no significance and therefore we also endorse the finding of the learned Sessions Judge that the accused 2 was also equally guilty of the offence in the murder of the deceased.
45. Now we turn to the second appeal filed by the State to challenge the impugned judgment and order of acquittal of accused 3 and 4.
46. The learned Sessions Judge had recorded an order of acquittal in passing the impugned judgment as against the accused 3 and 4 mainly for the following reasons:
(i) That, the recoveries of M.O. 50-gold ring, his clothes-M.O. 52 and M.O. 53 and cigarette packet-M.O. 51 made from accused 4 by P.W. 48 at Madanapalli and recoveries of gold chain, M.O. 54 seized under Ex.P. 19 at Kothirangana Kotai and his clothes M.O. 55 and M.O. 56 and a torch, M.O. 24 seized under Ex.P. 20 from the house of the brother of accused 3 situated at Madanapalli, were not proved as the witness for the mahazar Sri Srirama Reddy examined as P.W. 16 before the learned Sessions Judge did not support the prosecution and as such, the seizures of the above M.Os. from the said accused persons were not proved.
(ii) That, the confession statement Ex.P. 77 stated to have been made by the accused 4 before P.W. 50-the CMM was not proved by the prosecution as the original statement of the accused 3 was not sent to the jurisdictional Magistrate and that Ex.P. 77 was only a true copy of the extract of the original and certificate thereto as required under Section 164(2) of the Cr. P.C. was not contained in the said confession statement and furthermore, Ex.P, 77-the confession statement did not bear the signature of the accused 3 and because of the said defect in Ex.P. 77, the same was of no consequence and relief to the prosecution.
(iii) That, therefore the prosecution had failed to prove the involvement of the commission of the offence by A-3 and A-4 beyond all reasonable doubt and as such they were entitled to for the benefit of doubt.
47. To elaborate the above, it should be mentioned that the learned Sessions Judge had acquitted the accused 3 and 4 mainly on the ground that the prosecution had failed to prove the recoveries of the above M.Os. from them in examining P.W. 16. Yet another reason for the learned Sessions Judge to acquit the accused 4 is that the prosecution had not proved Ex. 77, the confessional statement stated to have been given by the accused 4 before the learned CMM, examined as P.W. 50 was not proved and that the same was not in consonance with Section 164 of the Cr. P.C. In the course of the judgment, the learned Sessions Judge in para 21 of the impugned judgment also observed that as Ex.P. 77 was not the original of the confessional statement and further that the same was being a typed version subsequently got done and as such, the same could not be accepted in evidence.
48. Now, let us see whether the reasoning of the learned Sessions Judge in acquitting the respondents accused 3 and 4 are just and proper. We have to point out here that when accused 2 had sent accused 3 well in advance to Bangalore, it was accused 2 and 4 who left Madanapalli in the car of P.W. 20 on 28-3-1993 and on that day, P.W. 38-the cleaner of the car too accompanied P.W. 20 the accused 2 and 4. It is relevant to point out further that the accused 2 at the first instance did not approach P.W. 20 demanding his car for hire to he driven to Bangalore, for it is the case of the prosecution and also in evidence that the accused 2 at the first instance approached P.W. 21, also a driver at Madanapalli, for hiring of his car to be driven to Bangalore. But P.W. 21 stated in his evidence that his car was under repair and thus introduced P.W. 20 to the accused 2 and P.W. 21 had also given evidence before the learned Sessions Judge in support of the said case of the prosecution and the said witness P.W. 21 too had identified the accused 2 and 4; that apart, the accused 2 to 4 on their return trip to MadanapalH had also travelled in the car driven by P.W. 20 and both P.W. 20-the driver of the car and further P.W. 38-the cleaner of the car had also identified the accused 2 to 4 so travelled, As a matter of fact the learned Sessions Judge in the course of the judgment had also observed that the accused 2 was identified by P.W. 20 and P.W. 38. If that was one of the circumstances for the learned Sessions Judge to hold that the prosecution had proved the charge as against the accused 2, in our considered view, there is no good reason for the learned Sessions Judge not to believe the evidence of P.W. 20 and P.W. 38 to hold that circumstance as against the accused 3 and 4 also, particularly when they also travelled in the ambassador car driven by P.W. 20 accompanied by P.W. 38. All the more, it is to be noted that when accused 2 and 4 had reached Bangalore at about 9.30 or 10.00 p.m. on 28-3-1993, the accused 3 had joined the accused 2 and 4 in the presence of P.W. 20 and P.W. 38 and all the three together with P.W. 20 had gone to Sambram Bar and had taken the hot drinks, the beer and the food together and furthermore, the accused 3 to 4 together parted the company of P.W. 20 and P.W. 38 having instructed P.W. 20 to park his car near Mukunda theatre on a presentation to them that they would join them later as they had a marriage function to attend to. It was also an important circumstance that having together parted the company of P.W. 20 and P.W. 38 at about 10 p.m. on 28-3-1993, all the three had joined together P.W. 20 and P.W. 38 at the very spot where they asked the car to be parked and furthermore travelled together in the car of P.W. 20 all the way to Madanapalli to reach that place at about 5.30 or 6 a.m. on the day following. The learned Sessions Judge held that the prosecution did not prove the recovery of the M.Os. from the accused 3 and 4 as the evidence adduced by them to prove the said recovery in examining P.W. 16 was not satisfactory. Here, we have to say that in a given circumstance, it is not necessary that the recoveries had to be proved only by examining a witness for the recoveries of the M.Os. were at the instance of accused persons themselves. As the Hon'ble Supreme Court held from time to time that the recoveries could as well be proved through the Police witnesses examined before the learned Sessions Judge, in the case on hand, we are but to hold that the prosecution did prove the recoveries of the M.Os. from accused 3 and 4 through the I.O. who had been examined as P.W. 48. In the case in hand, the prosecution had also examined P.W. 16 who had deposed before the learned Sessions Judge that the M.Os. 54 to 56 and M.O. 24 under Ex.P. 19-mahazar were recovered from the house of the accused 3 and the M.Os. 50 to 53 were recovered from the hotel room of the accused 4 under Ex.P. 18-mahazar.
49. The learned Sessions Judge while dealing with the confessional statement-Ex.P. 77 had observed that Ex.P. 77 was not the original, but only a typed version of the original confessional statement, particularly when the evidence of the CJM who had recorded the confessional statement, Ex.P. 77 had also given evidence to that effect. We have carefully gone through the evidence of the CJM examined as P.W. 50. It is in his evidence (in the cross-examination) that he had separately maintained the order sheet in respect of Ex.P. 77 and that the entire confessional statement was recorded by him in the order sheet in the proceedings and that Ex.P. 77 was only an extract of the said order sheet. It is also deposed by him in the cross-examination that he had maintained a separate order sheet in respect of recording of the confessional state-ment-Ex.P. 77 and that the said order sheet was not sent to the learned Sessions Judge when he was giving evidence before him. The said part of the evidence had made us to find out as to where the original order sheet maintained by him had gone and after hearing the parties and reserving for judgment, through the Registrar (Judicial) of this Court we tried to reach the original order sheet in the proceedings in which Ex.P. 77 was recorded and ultimately the Registrar (Judicial) was successful in securing the order sheet maintained from the office of the committal Court and having secured the same, we also got the matter posted before the Court to bring to the notice of all sides that the order sheet in respect of the recording of the confessional statement Ex.P. 77 was secured by us and was before us. Having taken judicial note of the said order sheet maintained by P.W. 50 in recording the confessional statement of the accused 4, we have to state here that it was not correct on the part of P.W. 50, the CJM to say before the learned Sessions Judge that he had recorded the original confessional statement in the order sheet and that Ex.P. 77 before the learned Sessions Judge was an extract of the original confessional statement recorded in the order sheet. In the facts and circumstances aforementioned, we are of the considered view that Ex.P. 77 was not the extract as it was deposed by P.W. 50 before the learned Sessions Judge, but the same was nothing but the original of the confessional statement given by A-4 before him; of course Ex.P. 77 was not recorded by P.W. 50 as contemplated under Section 164 of the Cr. P.C. for, be had not taken the signature of accused 4 on conclusion of the confessional statement given by the accused 4 in Ex.P. 77. Nevertheless, as we see, the learned CJM had followed all the procedures as contemplated under Section 164 in the matter of recording of the confessional statement in original as at Ex.P. 77. In the said state of affairs, we are not inclined to hold that Ex.P. 77-confessional statement was not the confessional statement recorded by P.W. 50, hut we do not hold that the same was not recorded by him in strict compliance of Section 164.
50. Now we have to consider in the said situation what is the worth and intrinsic value of Ex.P. 77 as a piece of documentary proof on record.
51. The Courts have consistently held that when the confessional statement recorded by the Magistrate when not in consonance with Section 164 of the Code of Criminal Procedure (the provision 164 in both the old as well as the new Code deals with recording of confessional statements), the same is not to be construed as a confessional statement in the legal sense, but the same is nevertheless very much admissible in evidence under Section 21 of the Evidence Act as an admission as against the maker of the same; of course such an admission made by the accused had to be treated as an admission by that accused alone and the same cannot be made use of as against any other co-accused in the case.
52. Now we want to examine the case law on that point.
53. In the case of Queen Empress v Nil Madhur Mitter, it was held as hereunder:
"Held on a reference to a Full Bench as to whether the confession was inadmissible in evidence by reason of some of the answers having been given in Bengali but recorded in English, that the provisions of Section 164 of the Code had no application to statements taken in the course of a police investigation made in the town of Calcutta, and that consequently Sections 364 and 533 had no application: held, nevertheless, that the document was properly admitted upon the evidence of the Magistrate under the provisions of Section 26 of the Evidence Act".
54. The facts of the above case and the facts of the instant case appear to be similar, for in the said reported case, the learned Magistrate had recorded the confessional statement in English language when the said statement was made in Bengali language and in the instant case, the learned CMM-P.W. 50 had recorded in Kannada language the confessional statement of accused 4 while such a statement was made in Tamil language, the language of the accused 4.
55. In Bakhshan v Crown , wherein the facts of the case were that the Magistrate who had recorded the confessional statement of the accused did not comply with one of the requirements of Section 164 of the Code of Criminal Procedure, namely that the confession shall not be recorded unless upon questioning the person making it and that the Magistrate had reason to believe that it was made voluntarily, it was held as hereunder:
"Held, that this defect could not be cured under Section 533 of the Code, but that the confession could be proved as an admission under Section 21 of the Evidence Act-Sections 164 and 364 of the Code merely prescribing the mode of recording a confession and not in any way affecting the provisions of the Evidence Act".
56. In Allahwarayo Daryakhan v Emperor, the Privy Council held that admission of incriminating evidence made by accused to a Magistrate under Section 164 to Court during Trial under Section 164 is admissible as admission under Sections 18 to 21 of the Evidence Act. The Privy Council in the case held as hereunder:
"Consideration which attach to the question of the admissibility of a confession made under Section 162, Criminal P.C. are different from the considerations which attach to a confession made before a Magistrate. The protective provisions of Section 162, Criminal P.C. which apply to statements by accused person to the police, or at least to accused persons who are at first witnesses, have their origin in the infirmities which, it is believed may affect the evidence of the police in India as to statements made by accused persons. Such considerations are obviously not applicable to statements made to Magistrates either under Section 164 or Section 342, Criminal P.C. An admission of incriminating facts made by an accused person to a Magistrate under Section 164, Criminal P.C. or a statement made to the Court during the course of the trial is admissible in evidence for what it is worth against the person who makes it under Sections 18 to 21, Evidence Act -- AIR 1936 Rang. 131, rel. on".
57. In yet another case of Ghulam Hussain v King, the Privy Council held that a confessional statement made under Section 164 of the Cr. P.C. when does not amount to a confession, can be used against the maker as an admission within the purview of Sections 18 to 21 of the Evidence Act.
58. In the case of Natesan, the Divisional Bench of the Madras High Court had also held that unless the provisions of Section 164 of the Cr. P.C. are not complied with, the admission made therein are admissible in evidence only under Section 21 of the Evidence Act; provided if the same does not fall within the mischief of Sections 24, 25 and 26. The Court held as hereunder:
"It is a well-recognised rule of construction that where a power is given to do a certain thing in a certain way, the thing must be done in that way, for that act to have legal consequences. Other methods of performance are, by necessary implication, excluded. A statement made by an accused to the Magistrate during the course of an investigation into the very crime of which he is accused cannot, therefore, be admitted in evidence unless the provisions of Section 164, Cr. P.C. are substantially complied with.
It cannot, however, be stated that under no circumstances whatever could a statement made by a person amounting to a confession of a crime to a Magistrate be admitted in evidence, unless the provisions of Section 164 of the Cr. P.C. are complied with. Such admissions are admissible in evidence under Section 21, Evidence Act unless they fall within the mischief of the succeeding sections such as Sections 24, 25 and 26".
59. From the above decisions it is clear that when the confessional statement recorded under Section 164 of the Code of Criminal Procedure is not a confessional statement in law either for non-compliance of the said provision of law or defective for any other reason, the same is very much admissible in evidence to be treated as an admission under Section 21 of the Evidence Act. As stated above, the learned CJM-P.W. 50 had recorded the confessional statement in Kannada language when the same was given in the Tamil language, the mother tongue of the accused 4. It is to be pointed out here further that the confessional statement was recorded in 'question and answer form' as required under Section 164 of the Cr. P.C., but the same appeared to be defective as the same was not signed by the accused 4 as required under sub-section (4) of Section 164. As we further observed, the learned CJM had certified that he had explained to the accused 4 that he was not bound to make a confession statement before him and in the event of his doing so, that confessional statement of his be used as evidence against him and that was recoursed to by P.W. 50 as required under sub-section (2) of Section 164 of the Cr. P.C. The prosecution had also got Ex.P. 77 translated in Kannada language, copy as at Ex.P. 77(a), by P.W. 49, the Official Translator working in the Directorate of Translation, Government of Karnataka. The prosecution had also examined the said witness before the learned Sessions Judge to speak to Ex.P. 77.
60. We deem it proper to quote the confessional statement as it appeared in Ex.P. 77 given in Tamil language by the accused 4 (Tamil being his mother tongue) recorded in Kannada script by P.W. 50. The same reads as hereunder :
61. We also deem it proper to quote the Kannada translation of the above as translated by the Advocate-Commissioner, one Edward Charles marked by consent of the parties as Ex.P. 77(A) by the learned Sessions Judge on 17-1-1997 (vide order sheet dated 17-1-1997 in Sessions Court proceedings). The same reads as hereunder:
62. In view of the circumstances that Ex.P. 77-the confessional statement of the accused 4 as at Ex.P. 77 was in original and further spoken thereto by the CJM-P.W. 50 and that the said confessional statement was defective, mainly for the reason that the signature of the accused 4 was not taken by him as required under sub-section (4) of Section 164 of the Cr. P.C., we are of the considered view that the same is very much admissible in evidence as an admission by the accused 4 under Section 21 of the Evidence Act. Such a view we hold in the light of the judicial pronouncements by the Privy Council and also by the Indian Courts. That being so, we further hold that the defective confessional statement made by accused 4 as at Ex.P. 77 has to be construed as an admission as against the maker, the accused 4.
63. By a simple reading of Ex.P. 77 (translation thereof as at Ex.P. 77-a), it is crystal clear to us that the accused 4 had actively participated from beginning to end in the committal of the offence by associating himself with the accused 1 to 3. Therefore, we hold that the impugned judgment passed by the learned Sessions Judge is liable to be set aside to hold that the prosecution did prove the charge as against the accused 4.
64. For the aforesaid reasons we are of the considered view that the learned Sessions Judge in passing the impugned judgment had rightly held that the accused 1 and 2 were guilty of the offence under Section 300 read with Section 34 of the IPC and he further rightly convicted them and sentenced them to suffer life imprisonment.
65. For the aforesaid reasons we further hold that the prosecution had proved the offence under Section 300 read with Section 34 of the IPC beyond all reasonable doubt as against the accused 3 and 4 also and as such we are inclined to set aside the impugned judgment and order of acquittal recorded by the learned Sessions Judge in passing the same. We do accordingly. Therefore, we are inclined to hold that both the accused 3 and 4 are also equally guilty of the offence under Section 300 read with Section 34 and therefore they are also liable to be convicted for the said offence i.e., offence under Section 300 read with Section 34 of the IPC; we accordingly hereby convict both of them for the offence under Section 300 read with Section 34 of the IPC.
66. Having held thus as against the accused 3 and 4 we now propose to hear the learned Counsel Sri Tomy Sebastian appearing for them on the imposition of sentence.
ORDER ON SENTENCE
67. Now we come to the sentence to be awarded to the accused 3 and 4.
68. The learned Counsel for the accused 3 and 4 Sri Arun Kumar appearing for and on behalf of Tomy Sebastian submitted that the minimum sentence for the offence under Section 300 of the IPC, to the said accused persons be awarded by this Court.
69. In passing the above judgment, we held both the accused 3 and 4 also guilty of the offence under Section 300 and we held them so with the aid of Section 34 of the IPC as they and the accused 1 and 2 together committed the offence under Section 300 in murdering the deceased Amarnath.
70. The minimum sentence that is imposable by us as against the said accused persons i.e., accused 3 and 4 is life imprisonment. As a matter of fact, the learned Sessions Judge in passing the impugned judgment and order of conviction and sentence as against the accused 1 and 2 had also awarded the said minimum sentence of imprisonment for life as against both of them. There is no good reason for us to depart from that view the learned Sessions Judge held, more so, when we also confirmed the said judgment of conviction and order of sentence of the said accused persons. Hence, we sentence both the above accused persons, accused 3 and 4 for life imprisonment under Section 300 read with Section 34 of the IPC.
71. The bail bonds executed by them stand cancelled.
72. Let the accused 3 and 4 now be taken to custody forthwith to serve out the sentence of life imprisonment hereinabove awarded by us.
73. To depart from the discussion on the case and before we formally record the result of the instant two appeals before us, we want to place on record the good, neat and timely assistance the Registrar (Judicial) of this Court, Sri A.C. Kabbin had rendered us in securing the original order sheet in the proceedings in which Ex.P. 77, the confession statement of the accused 4 was recorded by P.W, 50, the CJM, Bangalore City, which we hereby do. We should say with certainty that the Registrar (Judicial) knew his job well and he therefore secured the order sheet in question from the committal Court within 3 or 4 days of such a request we made to him. That in fact was our second attempt, when in our first by some other official process failed. His assistance helped us to a great extent to come to a right conclusion to hold that Ex.P. 77 was nothing but the original of the confession statement recorded, as no confession statement came to be recorded, in the order sheet, the one that was secured by Sri Kabbin, while in his evidence by the CJM, Bangalore City he spoke to the contrary to take away the very evidential value in Ex.P. 77. The value of Sri Kabbin's service couid be appreciated by us when we recalled that the learned Sessions Judge had acquitted the accused 4 mainly on the ground that Ex.P. 77 was only an extract of the original of the confession statement and that the original of the same in the order sheet was not made available to him. We in passing the judgment herein held that Ex.P. 77 was the original of the confession statement and that we could do only on availability of the original order sheet by Sri Kabbin.
74. Let the Registry keep a copy of the extract of this judgment pages 1 and 2 and 83 to 87 in the personal records of Sri Kabbin, Registrar (Judicial) of this Court, whatever be its worth.
75. Now we come to the result part of these two appeals.
We dismiss the first appeal preferred by the accused 1 and accused 2, while we allow the latter appeal preferred by the State as against the accused 3 and 4.