Karnataka High Court
Suresh S/O Laxman Sameda vs The State on 27 March, 2015
Bench: Ravi Malimath, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MARCH, 2015
PRESENT
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE BUDIHAL R. B.
CRIMINAL APPEAL No.3569 OF 2009
BETWEEN:
1. SURESH
S/O LAXMAN SAMEDA
AGE: 19 YEARS,
OCC: TAILORING WORK,
R/O RASTRAPATHI ONI,
DEVADURGA,
TQ: DEVADURGA,
DIST: RAICHUR.
2. NAGARAJ
S/O KISHANRAO
AGE: 24 YEARS,
OCC: PEON JMFC COURT,
DEVADURGA,
R/O ARAB MOHALLA,
DEVADURGA,
TQ: DEVADURGA,
DIST: RAICHUR. ... APPELLANTS
[BY SRI. NANDKISHORE BOOB, ADV.]
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AND:
THE STATE THROUGH MUDGAL
POLICE STATION,
DEVDURGA,
TQ: DEVDURGA, DIST: RAICHUR,
REPRESENTED BY PUBLIC
PROSECUTOR HIGH COURT
CIRCUIT BENCH AT GULBARGA. ... RESPONDENT
[BY SRI. PRAKASH YELI, ADDL. SPP.]
***
THIS CRIMINAL APPEAL FILED U/S 374(2) OF CR.P.C
BY THE ADVOCATE FOR THE APPELLANT THE
JUDGEMENT AND ORDER DATED: 26.02.2009 PASSED BY
FAST TRACK -I JUDGE AT RAICHUR, IN S.C.NO.48/2008
CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCE PUNISHABLE U/S 302 R/W SEC.34 OF IPC AND
THE APPELLANTS/ACCUSED ARE SENTENCED TO
UNDERGO LIFE IMPRISONMENT AND TO PAY A FINE OF
RS. 10,000/-.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY,
BUDIHAL R.B. J., DELIVERED THE FOLLOWING:
JUDGMENT
This is the appeal preferred by the appellants/accused under Section 374(2) of Cr.P.C., being aggrieved by the judgment and order dated 26.02.2009, passed by the Fast Track Court-I, at Raichur in S.C.No.48/2008, convicting the appellants for the offences punishable under Section 302 read with Section 34 of 3 IPC, sentencing them to undergo life imprisonment and to pay fine of Rs.10,000/- each.
2. The case of the prosecution as per the complaint at Ex.P1 is that:
PW.1- Veeresh, PSI of Mudagal police station, filed a complaint alleging that on 06.12.2007 at 17.15 hours, when he came to the police station, the SHO and HC-57 informed the complainant that on that day at 16.30 hours one Paramappa Controller, called and informed that there was quarrel going on in between the persons in the jeep and the driver of the bus. As there were no other persons in the police station, the centry police PC- 36/Mallikarjun was asked to go to the spot and bring those persons and accordingly, the said PC went towards the bus-stand and then a short time, DAR PC Yamanappa brought the motorcycle of PC-36/Mallikarjun as Mallikarjun went towards the spot, where the quarrel was going on and asked Yamanappa to take his motorcycle to the Police Station and he will come later.
3. As PC-36/Mallikarjun did not come back even after 16.45 hours, Yamanappa went towards the bus-stand, enquired 4 and he was told that PC-36/Mallikarjun went into the jeep along with the persons, who made Galata and went towards the police station. He told that he does not know the jeep number. The complainant enquired with Kotrappa-KSRTC Mechanic, who took the complainant to the control room. There was a jeep of cruiser company, whose number had been mentioned as KA- 25/B-3817 and at that time, bus bearing registration No.KA- 09/F-2852 came near Maski-Mudgal bus stand. Two - three persons who were in the said private jeep picked up quarrel with the driver and conductor of the said bus and the same was informed to the complainant. But, by that time, the bus had already left the place and the private jeep was also not there and he came back to the police station at 17.00 hours. In the mean while, the phone message was received at the police station, informing that one Venkatesh, who was a pan-shop keeper, informed that one auto person informed that on Uppar Nandihal road, one policeman, who was in the uniform, was lying there. The same was informed to ASI-Marthandappa, who came to the police station. The complainant immediately had been to the spot, on Uppar Nandihal road and nearby the land of one 5 Ningappa Halli, PC-36/Mallikarjun was murdered by the side of the said road and on his right side chest, on the neck, left eye and other parts of the body, there were stab injuries with knife and the uniform of the deceased was full of blood. The complainant left ASI-Krishna at the spot and came to the police station and in between 16.30 hours and 17.00 hours, as PC-36/Mallikarjun insisted the driver and 2-3 persons, who were in the jeep, who picked up quarrel, to come to the police station and said persons took the PC in their jeep stating that they would come to the police station. But they did not come to the police station with an intention to commit the murder of PC-36/Mallikarjun. They forcibly took him nearby the land of one Ningappa Halli on Amadihal-Uppar Nandihal road and assaulted him with knife and committed his murder and hence, sought to take legal action against those persons. On the basis of the said complaint, FIR was registered against the driver of cruiser jeep bearing registration No.KA-25/B-3817 and against other 2-3 unknown persons.
4. After conducting and completing the investigation, the Investigating Officer filed the charge sheet against the 6 appellants/accused for the offences punishable under Section 302 read with Section 34 of IPC.
5. During the course of trial, the prosecution has examined, in all, 29 witnesses and got marked material objects at MO.s.1 to 20. During the cross-examination of the prosecution witnesses, the defence got marked Exs.D1 to D3.
6. After considering the materials placed on record, ultimately the trial Court convicted the appellants/accused for the offences punishable under Sections 302 read with Section 34 of IPC and imposed sentence of life imprisonment and fine. Against the said judgment and order, the appellants have preferred the present appeal.
7. Heard the arguments of learned counsel appearing for the appellants/accused and also learned Additional SPP for the State.
8. Learned counsel appearing for the appellants has produced the synopsis of the case. He submitted that FIR was registered against the unknown persons. There are no 7 eyewitnesses to the alleged incident and case of the prosecution rests on the circumstantial evidence. Further, he submitted that there is a joint recovery, under which the knife and bloodstained clothes of both the appellants are said to have been seized by the prosecution. Hence, he submitted that the joint recovery itself is illegal and it cannot be considered at all.
9. The learned counsel for appellants further made the submission that the test identification parade said to have conducted by PW.25, who is a Taluka Executive Magistrate, was not in accordance with Section 9 of the Evidence Act. He submitted that it is the case of the prosecution that immediately after the alleged incident, the accused were arrested and taken to the police station and they were also produced before the concerned Magistrate Court. Test identification parade was conducted eight days after the alleged incident and during the said period of eight days there was every chance for the witnesses to see the accused persons. Hence, he submitted that the proper procedure has not been adopted by PW.25 in conducting the parade and same cannot be relied by the Court.
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10. The learned counsel also submits that the extra judicial confession statement said to have been made by the appellants before the witnesses i.e. PWs.12 and 15, is not at all worth believable and cannot be relied upon. The prosecution story is that PC-36/Mallikarjun asked the accused to come to the police station. When they came along with the deceased and as the accused having knife with them in the jeep, they apprehended that they will be caught by the police and to avoid the same, they took the jeep on the right side instead of taking to the police station and committed the murder of PC-36/Mallikarjun. Learned counsel submitted that this has been falsified by Ex.D1, which got marked during the course of cross-examination of prosecution witnesses, who have not stated before investigating officer that there was knife carried by the accused in the jeep. Learned counsel further made the submission that the jeep is not at all belonging to the appellants/accused and therefore, the accused using the jeep for the purpose of taking PC-36/Mallikarjun in the said vehicle to the spot and committing the murder does not arise at all.
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11. Learned counsel for the appellants submitted that even though it is the case as per evidence of PWs.12 and 15 that the appellants/accused made extra judicial confession statement before them, but both of them did not inform the same to the police or to the relatives of the deceased and this conduct of PWs.12 and 15 is material in appreciating the case of the prosecution. Learned counsel submitted that the prosecution has utterly failed to prove the charges against the appellants beyond all reasonable doubt. The chain of circumstances is also not properly established and there arises reasonable doubt to the case of the prosecution that the appellants have committed the murder of the deceased. Hence, he submitted that the benefit of doubt may be given to the appellants/accused and they may be acquitted. In support of his contentions, learned counsel has relied upon the following decisions:
i. 2009 (2) Crimes 425 (SC) in the case of State of A.P v. V.V.Panduranga Rao ii. 1979 CRI L.J.51 in the case of Ganesh Bhavan Patel and another, v. State of Maharastra iii. LAWS (P & H)-1966-3-4 in the case of Vinayak V.Joshi v. State 10 iv. 1981 CRI L.J.1734 in the case of Ramlal Lohar v.
The State of Assam
v. 2011 SAR (Criminal) 363 in the case of Rukia Begum
v. State of Karnataka
vi. LAWS (SC) - 2008-10-113
AIR (SCW)-2009-0-108/AIR(SC) (CRI)-2011-0-
1823/AIR(SC)-2009-0-101 in the case of Inspector of Police T N v. Palanisamy vii. 2013 SAR (Criminal) 708 in the case of Tejinder Singh @ Kaka v. State of Punjab viii. 2012 SAR (Criminal) 127 in the case of Kailash Gour & Ors. v. State of Assam ix. 2009 SAR (Criminal) 918 in the case of State of Andhra Pradesh v. S.Swarnalatha & Ors.
x. 2014 (2) Crimes 219 (SC) in the case of State of Himachal Pradesh v. Raj Kumar
12. Per contra, learned Additional SPP during the course of his arguments made the submission that looking to the evidence of PWs.6 to 12 and 15, the prosecution has clearly established that the deceased has boarded the jeep belonging to the accused and went along with them in the said jeep. The prosecution has established the last seen theory satisfactorily. He also submitted that looking to the evidence of PW.25, who is 11 Thasildar, he followed the procedure as contemplated under law in conducting the test identification parade and there is no infirmity either in the evidence of PW.25 or in the procedure followed by him. The trial Court has rightly relied upon the evidence of PW.25. The learned Additional SPP further made the submission that the accused led the police and the panchas to their house at Devadurga and took out the bloodstained knife and clothes and produced before the police in the presence of panch witnesses and the prosecution has satisfactorily established the Seizure Mahazar. The FSL report clearly shows the involvement of appellants/accused in committing the murder of PC- 36/Mallikarjun. PWs.12 and 15 have consistently deposed about the extra judicial confession made by the appellants-accused admitting their guilt. Hence, he submitted that the trial Court has properly considered and appreciated the oral and documentary evidence and rightly convicted the appellants/accused. No illegality has been committed by the trial Court nor there is any perverse or capricious view taken by the trial Court. Hence, he submitted that the appeal be dismissed.
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13. We have perused oral evidence of prosecution witnesses , the documents at Exs.P1 to P51, Exs.D1 to D3, the material objects M.Os.1 to 3 and considered the grounds urged in the appeal memorandum. We have also perused the judgment and order of conviction passed by the Trial Court and the decisions relied upon by learned counsel for the appellants/accused.
14. With regard to the case of prosecution that, on the date of incident i.e., on 06.12.2007, the deceased P.C.36/Mallikarjun boarded the Cruiser Jeep bearing No.KA-25-B-3817, let us examine the materials produced before the Trial Court. In this regard, we have to refer to the oral evidence of PW-12/Suguresh, PW-15/Manjunath, PW-22/H.Krishna, PSI, PW-9/Kotrappa, Helper in KSRTC and PW-10/Parmappa, Traffic Controller.
15. PW-12/Suguresh has deposed in his evidence in the examination in chief that his sister Eramma, who was married, was expired in February 2007. In order to bring back the articles given to his sister at the time of her marriage, he hired a cruiser jeep on 13 06.12.2007 and proceeded at 12.30 noon. He informed accused No.2/Nagaraj to bring the vehicle. Accused No.2/Nagaraj and PW-15/Manjunath were friends. He has further deposed that he has also told to bring accused No.1/Suresh also. Accordingly, those three persons came along with vehicle to Gandhi Chowk at Devadurga. He has also boarded the said vehicle. Then, they proceeded from Devadurga to Tinthini Bridge and passengers boarded the vehicle at the said place. Thereafter, some passengers alighted at Gurgunta and some passengers came up to Lingasugur. Then, from Lingasugur till Mudgal, passengers were full in the vehicle. All the passengers were alighted at Mudgal. There, they all went to bar, had drinks and meals. Then to have some passengers in the vehicle, they left the hotel and took the vehicle towards bus stand thinking that the passengers would be available. There, a 407 vehicle was touched to the bus and it was stopped across the bus. He asked the drivers to remove the vehicle and then galata started. The persons, who were present there, assaulted them. Then, immediately, phoned to police and one police came there and he sat in their Cruiser vehicle. When the police boarded the Cruiser vehicle, accused Nos.1 and 2 were in 14 the said vehicle. Himself and another person wanted to board the vehicle but the police asked them not to board and if, they come they will be put into lockup. Hence, himself and Manjunath alighted. Thereafter, he went to police station thinking that the vehicle will come to the station, but the vehicle did not come there. In the meanwhile, PW-15/Manjunath phoned him informing that the vehicle went towards Ilkal road.
16. PW-12 in his cross examination by the learned counsel for the accused has deposed that on the date of incident, while proceeding towards Tawargere, to bring the articles given to his sister, in Cruiser vehicle, the accused had not taken knife. While giving the statement before police, he had not stated that, while going to Tawargere in the jeep, they had one big knife at 10.30 p.m., which portion is marked as per Ex.D-1. At that time, he had not stated that they intended to finish off Kalyan with a big knife, which portion is marked as per Ex.D-2. After having food, at about 3.45 p.m, they came back near the parked jeep and from there, they took the jeep to bus stand. For about 3-4 minutes, they stopped the jeep for passengers at the entry gate of bus stand. 15 At that time there was quarrel between them and the bus driver. More than 50 people gathered at the spot. From the bus stand, he went by walk to Police Station. He did not inform the Police about the jeep with the Police Constable proceeding on the left. Then he received the phone call from PW-15/Manjunath and then, PW-15 also came to the Police Station. Even then, they did not inform the police about the vehicle proceeding to the left side along with the Police Constable, as he was under tension. He cannot say the direction of the road situated in front of Mudgal bus stand. Himself and Manjunath went by walk to the distance of 2-3 kms till near the pan shop. Except with pan shopwala, they had not enquired about the Cruiser jeep with others. At about 5.00p.m. they came nearby the bus stand. At that time, they received phone call from accused No.2 about the jeep. They went through bus from Mudgal to Lingasugur. It was suggested to this witness that accused No.2/Nagaraj does not know to drive his jeep. The Police took him to Magistrate Court at Sindhanur. He gave the statement before the Magistrate Court. The CPI, Tumbagi and other policemen were with him. After leaving him at the Court, all the policemen went away. He denied the 16 suggestion that unless he gives the statement before the Court, the police threatened to finish off him in encounter or to involve in this case. He has also denied the further suggestion that because of fear, he gave the statement before the Court. He has denied further suggestion that himself and PW-15/Manjunath went in the jeep to the police station.
17. Looking to the evidence of this witness, even during the course of cross-examination, there is no specific suggestion to this witness that deceased P.C./Mallikarjun had not at all boarded in the said Cruiser jeep on that day. It is also not suggested that accused Nos.1 and 2 have not accompanied him in the jeep as deposed by this witness.
18. PW-15/Manjunath has deposed in his evidence in the examination in chief that he knows the accused persons before the Court. He knows PW-12/Suguresh. He is working as a driver in Cruiser vehicle bearing registration No.KA-25-B-3817. About 5 to 6 days before the incident, accused Nos.1 and 2 asked for the vehicle for one day on rent. Accordingly, he went to Tavaregere before one week. On 06.12.2007, he agreed for giving the vehicle 17 on rent. He told them to fill diesel and Rs.600 per day and Rs.100/- is driver batta and the accused persons agreed for the same. Accused persons came in Cruiser and they came in front of the hospital at Devadurga. Then went to Gandi Chowk. PW- 12/Suguresh was there. By filling diesel, they left Devdurga towards Tintini bridge and picked up the passengers. Then accused No.2 told that he will drive the vehicle, then he got into the back seat of the vehicle. Then, they came to Gurgunta, about 4 passengers got into the vehicle. They left Gurgunta and came to Lingasagur and from there, they came to Mudugal at about 2.45p.m. The passengers alighted in front of Mudugal bus stand. They parked the vehicle in front of the hotel and went to bar. He took beer and accused persons took hot drinks and near the hotel, they took meals. Then came back to the hotel. When the jeep was being made to turn, there was a 407 vehicle touched to the bus and there was traffic jam. He requested to give space to move and at that time, there was quarrel between the bus driver with accused persons. The public beat them and attempted to break the glass of their vehicle. Police came, accused No.2/Nagaraj got into the driver seat of Cruiser and accused No.2 started the vehicle. 18 Himself and Suguresh escaped from the public. The policeman asked to go towards left, but the vehicle proceeded to right side. Himself and PW-12/Suguresh were left there only. When himself and PW-12/Suguresh met in front of the police station, vehicle did not come. Though, they waited for about 10 minutes, the vehicle did not come. Then, himself and PW-12 went by walk nearby one pan shop and asked about the vehicle. At about 6.00p.m., he got phone call from accused No.2/Nagaraj to his mobile informing him to go to Devdurga and the phone was disconnected. Himself and Suguresh reached Devdurga. As they had shortage of funds, they went by lorry at Tintini bridge. Then PW-12/Suguresh brought Rs.20/- from a person known to him. They reached Devdurga at about 9.00p.m.
19. In his cross examination by the learned counsel for the accused, PW-15/Manjunath, has deposed that Cruiser jeep is in the name of Thippava. He personally managed the jeep and he is the driver of the said jeep on Rs.800/- per month. PW-12 hired the vehicle. He did not know that accused No.2/Nagaraj was not holding Driving Licence, but he knew that accused No.2 knows 19 driving. But generally he also drives the jeep. When policeman Mallikarjun came, he did not tell that he was the driver and owner of the vehicle. The jeep went towards Ilakal side. He had gone to police station, but did not enter into the police station. He was near the police station till 6.00 p.m. They were waiting for the jeep and they did not inform the police. He received the phone from accused No.2/Nagaraj and they told to go to Devdurga and they did not go to the police station. He further deposed that he personally received phone from accused No.2/Nagaraj, but before enquiring the reasons, the phone was disconnected. He did not dial back to accused No.2's mobile. They reached Devdurga at about 9.00p.m. He denied the suggestion that himself and PW-12 went in the jeep. He denied the further suggestion that they went to police station and left the jeep at the police station. He has also denied the suggestion that police kept him in their custody for 7-8 days and threatened him of involving in the case and to finish him in the encounter. He denied the suggestion that he is giving false evidence. He also denied the suggestion that since last 2-3 days he was kept in police custody. Accused No.1/Suresh had brought some cover and kept in the vehicle. He denied the suggestion that 20 accused never came in jeep to Devdurga and they never stated before him that they stabbed the policeman in the jeep.
20. Looking to the evidence of this witness, he has consistently deposed that PW-12 hired the Cruiser jeep and they all went in the said jeep up to Mudugal, galata occurred in front of the bus stand at Mudugal and then deceased P.C - Mallikarjun came to said place of quarrel and then the said P.C got into the Cruiser jeep, in which accused Nos.1 and 2 were present and asked them to take the jeep to the Police Station.
21. PW-22/Krishna, ASI, has deposed in his evidence in examination in chief that on 06.12.2007, himself and PW-21 when went to police station at about 5.00 p.m., the SHO, Channappa informed that Controller/Parmappa phoned from the bus stand and informed that quarrel was going on between driver of the jeep and the driver of the bus, and requested to depute the Police. As there were no other persons in the police station, he sent P.C. Mallikarjun. He has also deposed that APC 03 Yamanappa came to the police station and informed that P.C.-Mallikarjun has asked 21 him to take his motor cycle to the Police Station and he will bring the persons making galata to the Police Station and accordingly, he had brought the motor cycle of P.C. - Mallikarjun. He further deposed that after some time as Mallikarjun did not come, he went to enquire the same. They eqnuired with Kottrappa of KSRTC who in turn went to traffic Controller-Parmappa, & through whom they came to know about the vehicles jeep bearing No. KA-25-B-3817 and bus bearing No.KA-09-2852. Thereafter, Channappa went to the said place. The jeep and the bus were not there at that time and Channappa came back to the Police Station. In the meanwhile, one Venkatesh phoned to Channappa and informed that one person in police uniform was lying dead by the side of Amdihal-Upparnandihal road.
22. Nothing has been elicited in the cross-examination of PW.22 so as to disbelieve the case of prosecution.
23. Then, PW-9/Kotrappa, who was the Helper in KSRTC at Mudugal Bus stand deposed in his examination in chief that since two years he was working as Helper at Mudagal. Himself 22 and Parmappa, Controller, were sitting in a room, outside galata was going on and they came out. The said quarrel was on 06.12.2007 at about 4.30 p.m near Mudgual bus stand. At that time, one bus was standing at the gate of the bus stand and persons in the Cruiser vehicle were asking to give side and in that connection, galata was going on between driver and conductor of KSRTC vehicle on the one side and the persons of Cruiser vehicle on the other. At that time, C.W-12 Controller Parmappa, informed him to bring the number of the vehicle. He brought the Cruiser Number & it was KA-25-B-3817. Then he informed Mudgal police over phone. Two persons were in the said jeep. He identified that the accused persons before the Court were the persons, who were making galata with the driver of the bus. On that day at 4.30 p.m., one P.C./Mallikarjuna came to the spot. Then he pacified the quarrel, boarded the cruiser vehicle and asked the accused to proceed to Police Station. The other two persons tried to board the vehicle but P.C./Mallikarjun asked them not to alight. Then, the vehicle proceeded. The police waved his hand towards left, but the jeep proceeded towards Amadihal. On the side i.e., left towards which the police shown signal by 23 hand, there was a Police Station. Police recorded his statement on 18.12.2007.
24. In his cross examination by the advocate for accused, PW9 has deposed that on that day, at 6.15 p.m., through the people he came to know about the murder. In the bus stand, they had not maintained any complaint register but for the arrival and departure of vehicles they have maintained one register. On the said register, the Controller wrote about the said bus. His duty was in the bus stand and there was no depot. If there was a minor repair and air lock, he would repair it. When he was asked whether he made entry in the duty register, he answered that there is a attendance register and he made the entry. His duty was from 8 a.m. to 5 p.m. Normally, the vehicles will not be brought inside the bus stand but the accused brought the vehicle. The 407 Vehicle touched to the bus. The cruiser vehicle was towards the southern gate. While going outside the gate of bus stand, the cruiser vehicle was on the left side. As cruiser was there, the vehicles were not passing through the gate and there was a block. Cruiser came to the said place at 4.00 or 4.15 p.m. The people of 24 the cruiser were quarreling and they left at 4.30 p.m. He denied the suggestion that on that day Cruiser jeep had not at all came there and no quarrel took place and he is deposing falsely. On that day when the quarrel was going on, he saw the accused for the first time and earlier, he had not seen and thereafter, he saw the accused in jail and before the Court. He denied the suggestion that the accused before the Court were not at all in the jeep. He denied the suggestion that before going to the jail, the police have shown the photos of accused. He denied the suggestion that one day earlier he was taken to the sub jail by the police and shown the accused to him. He denied the further suggestion that accused persons had not come to the said place on that day and they had not quarreled.
25. PW-10/Parmappa, the traffic controller, KSRTC Mudgal, deposed in his evidence in the examination in chief that on 06.12.2007, he was making entry in respect of vehicles in the control room. At that time, galata was going on outside. PW-9 called him to go and see. The driver Channabasappa came and told him that the persons in Cruiser picked up quarrel and 25 thereafter, asked him to inform the Police. PW-9 Kotrappa got the cruiser number and then they phoned to police station and gave information. Then P.C./Mallikarjun, the deceased came to bus stand and pacified the quarrel. By sitting in cruiser vehicle, the P.C asked them to go to police station. The deceased asked them to take a turn towards left by showing his hand, but the vehicle went towards right side. On the left side towards which police signaled by hand there was a police Station. In the mean while, Jamadar Channappa came to bus stand and asked to give Cruiser Number and they gave cruiser number which was brought by PW- 9 Kotrappa. When the jeep was proceeding from the said place, police, driver and another person were in the jeep. The accused before the Court were in the jeep.
26. In his cross examination by the advocate for accused, PW-10 has deposed that on 18th, he directly went to the Tahasildar and no police was present with the Tahasildar. Himself and Tahasildar went and nobody present with them. He was there in the jail for about 5 to 10minutes. He denied the suggestion that in his presence, no test identification parade was conducted and 26 police came and took his signature. He further deposed that in the bus stand, he has seen the accused on that day for the first time and not earlier. On 7th, When he had been to police station he had not seen the accused there. He denied the suggestion that police shown him the photos of accused. He denied further suggestion that the police shown the accused to him when the accused were taken to Court. He has also denied the suggestion that a day earlier to 18th, Police took him and PW-9/Kotrappa to the sub jail and shown the accused to them. After coming out of the control room, he had seen the galata and along with him PW9 also came and seen the galata. When they came and saw, the quarrel was still going on with the driver and conductor. He denied the suggestion that on that day no such quarrel took place and accused have not come in the cruiser vehicle. When police sat in the Cruiser jeep and proceeded, then he went to the control room. He denied the suggestion that he is deposing falsely that even though there was a hand signal to take cruiser jeep to left side, it was taken on the right side and went away. He denied further suggestion that on that day he had not come to bus stand and not seen any galata.
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27. PW-11 Channabasappa who is driver of the KSTRC has deposed in his examination in chief that on 8.12.2007, he was taking his bus from Maski to Mudgal. When he was going inside the Mudgal bus stand, another bus came from opposite direction and repair was going on in the bus stand. As there was another bus from opposite direction, he was taking his bus reverse side. At that time, 407 vehicle came on the back side and the bumper of the 407 vehicle touched to the bumper of the other vehicle. As there was sound, he stopped the bus and went to the rear side to see as to what had happened. The 407 vehicle people were making an attempt to take the vehicle and to proceed. He told them that they have to get the bus repaired or they have to pay the amount. He phoned to depot and the 407 vehicle people told that they will pay the expenses. So they entered into compromise with 407 vehicle people. In the mean while, when he proceeded, the public were quarrelling with trax driver and another person. He told to remove the trax vehicle, but trax vehicle people started to argue. Then, he went to control room and told them about galata that was going on and they were sitting calmly. Then PW- 28 10/Paramappa phoned to police station and police came to bus stand and police asked him to remove the vehicle. Accordingly, he removed the bus. Then, the police boarded in the trax and asked them to take the vehicle to police station. The driver and other persons were in the trax and said two persons were the accused before the Court. (It is mentioned by the trial Court that the witness stated the names of accused) On 18.12.2007, he received notice from Lingsugur Thasildar asking him to come to his office. Accordingly, he went to office of Tahsildar, with Tahsildar, he went to jail. Ten people were standing in a row in the jail and Thasildar asked him as to whether he can identify trax driver and another person and he told yes. Out of ten persons, accused Nagaraja was standing at Sl.No.4 and Suresh was standing at Sl.No.7. This was also evidenced by the oral evidence of PW.25 and document Ex.P.36. In this connection, Tahasildar has obtained his signature on the document Ex.P-36 and P.36 (a) is his signature.
28. In the cross examination by counsel for accused, PW.11 has deposed that after he went to jail, 10 people were 29 made to stand in a row. He had not seen who and from where, they were brought. He denied the suggestion that he had not called there and he had not identified the accused. He denied further suggestion that earlier to 18th, police took him to jail and shown the accused persons to him. Police did not show any photographs of accused to him. He denied further suggestion that when the police was taking the accused to the Court, they have shown photos to him. He has deposed that he had seen the accused for the first time in the bus stand, 2nd time in jail and for 3rd time before the Court. He denied the further suggestion that no such quarrel took place, accused were not in the jeep and at the instance of Police he was giving the false evidence.
29. Perusing the evidence of all the above witnesses, who have been put into the test of cross examination, it is satisfactorily established by the prosecution that on 06.12.007 at about 4.30 p.m., quarrel was going on between these accused persons and driver and conductor of KSRTC bus. The prosecution has further established that P.C./Mallikarjun the deceased, came to spot and after pacifying the quarrel, he sat into the said cruiser jeep of the 30 accused Nos.1 and 2 and proceeded with them. The materials also show that by sitting in the said jeep and by his hand signal, though the deceased asked the accused to take the vehicle towards the left, wherein there was a police station, even then the accused took the jeep towards right side and proceeded towards Amadihal road.
30. It is the contention of accused that the statement of PWs-12 and 15 were recorded on 14.12.2007 and there is delay of nearly 7 to 8 days in recording their statement and hence, their evidence cannot be believed. Regarding this contention, we will come to this aspect in detail, little later. For the sake of appreciation of material, even if it is assumed by the Court that their evidence cannot be considered, but it is not the only evidence of PWs-12 and 15 to show that on the date of incident P.C./Mallikarjun came to bus stand and pacified the quarrel, sat into the jeep, where accused nos.1 and 2 were present and asked them to go towards police station and the accused took jeep right side towards Amadihal, there is also evidence of other witnesses about which we made detailed reference above. Therefore, the fact that the deceased proceeded in the jeep of accused Nos.1 and 31 2 has been satisfactorily established by the prosecution with cogent and worth believable materials.
31. It is also the contention of the accused that the tahsildar pw-25 has not conducted the test identification parade and it is not in accordance with the procedure as contemplated under section 9 of Evidence Act. We are of the clear opinion that conducting such test identification parade was not at all necessary in this case. The incident nearby the Mudgal bus stand took place in the broad day light at 4.30 p.m and the KSRTC Bus driver then, pw10/Parmappa, Traffic controller, KSRTC, PW-9/Kotrappa, Helper in KSRTC went to the place where quarrel was going on between the accused on the one side, driver and conductor of the bus on the other side. There was time for these persons to see and observe the appearance of these accused persons. It is not the case where the incident has taken place in dark place where it was not possible to identify the culprits. Even looking to evidence of these witnesses, PW-9 Kotrappa, Parmappa/PW-10, Channabasappa PW-11 have consistently deposed in their evidence that they were called by Tahsildar to the jail premises on 32 18.07.2007 and they had participated in the test identification parade and they identified accused NOs.1 and 2 in test identification parade. Even looking to the deposition of these witnesses, the learned trial judge has also observed that the witnesses have correctly identified the accused before the Court. During the course of cross examination of these witnesses, though it was suggested that after the incident and before conducting the test identification parade, the accused were shown to the these witnesses by the police and also their photos, all these suggestions were denied by all the witnesses. Therefore, in establishing the identity of accused persons, the evidence of witnesses is consistent and cogent and it is worth believable. So no fault can be found with the proceedings of the test identification parade as argued by the learned counsel for the accused.
32. It is the prosecution case that after the arrest of accused the accused and also the cruiser jeep were brought to the police station and the accused made the voluntary statement before the police that they have hidden the blood stained knife and blood stained clothes at Devadurga and if they were taken to 33 the said place they will point out and produce the same. The prosecution has produced the voluntary statement as per Exs.P-50 and P-51. We have perused Ex.P-50, which is said to be given by Accused No.1/Suresh. His voluntary Statement was recorded on 07.12.2007 i.e., on the next day of the incident, wherein he has stated that big size knife used for the incident and blood stained clothes which he worn on that day were at Devdurga and if he is taken, he will point out and produce the same. It bears the signature of accused No.1 as per Ex.P.50(a) and also the signature of CPI Maski as per Ex.P-50(b). So also, we perused Ex.P51 it is the voluntary statement said to be given by Accused No.2. It is dated 07.12.2007 to the effect that the blood stained clothes, which he worn on that day were kept at Devdurga and if he is taken to the said place, he will point out and produce the same. The statement bears the signature of Nagaraj A2 as per Ex.P51(a) and signature of CPI Maski as per Ex.P-51(b).
33. We have perused the seizure mahazar Ex.P-26 in respect of the knife and the clothes. One Husainappa S/o Hanumappa Kattimani and one Shivappa S/o Gadeppa S/o 34 Sunkad are the panch witness shown in Ex.P-26. The panchanama shows that as the accused persons stated that they kept the objects at Devdurga, the CPI Maski took the panchas and the accused persons along with photographer and the staff in his jeep KA-36/G-90 and went to Devdurga from Mudgal and reached Devdurg at 4.00 p.m. As told by the accused, they stopped their jeep at Abu Mohalla near Banni Katte at Devdurga. Accused No.2 was left in the jeep along with the staff. They alighted from the jeep, firstly accused No.1 Suresh went ahead taking CPI and the panchas and shown the house of accused No.2 Nagaraj and told that he has kept the objects in the said house. Entering into the said house, on the Sajja, which is above the western wall, the cloth bundle, which was tied, was removed and kept aside. In the northern corner, he took one knife and produced before the Police. There was blood stains on the knife and it was having wooden handle and on the handle also, there was blood stains. Again from the same place, on the sajja, he took out the clothes and produced before the Police, photographs were taken. There were white mixed blue colour half sleeves shirt, there were blood stains and one design pant having mixed colour 35 of black, saffron and yellow, the blood stained, one snuff colour Sandow baniyan blood stained, one blue colour nikker were separately packed and sealed with the seal DAK. Then, accused No.1/Suresh was brought back to the jeep and left with the staff. Then accused No.2/Nagaraj proceeded ahead and taking to a house, he shown that it is his house and going inside the said house, on the sajja to the western wall, he took out the clothes stating that he worn them at the time of the incident and produced before the Police, photographs were taken and those clothes were one sky-blue colour full sleeves shirt, which was blood stained, one blue colour jeans pant along with belt having blood stains. They were packed and sealed by using seal DAK and panchanama was drawn on 07.12.2007 as mentioned in Ex.P-
26.
34. PW-3/Husainappa has been examined by the prosecution, whose deposition is that police took him and Shivappa to Devdurga. There was one Banni Tree. Nearby the said tree, there was one house. Police, these two panchas and the accused before the Court went to the said place. Police took them 36 inside the house and conducted panchanama. Accused Nos.1 and 2 showed them the knife and the clothes. He identified his signature on Ex.P-26 as per Ex.P-26a. He has also identified M.O.s 12 to 18. He deposed that the slips containing his signature along with the signature of another pancha were pasted on the said packets and photographs were taken at the said place. He has seen six photographs, they are as per Ex.P-17 to P-23.
35. In his cross-examination by the counsel for the accused, PW-3 has deposed that they reached Devdurga, at 5.45 p.m. and returned at 6.00 p.m. In Devdurga inside the house, panchanama was drawn. In front of the house, there was a Banni tree. He does not know who are all residing in the said house but deposed that when they went there, no other persons were there in the house. There was only one room in the said house. When it was suggested that in the said house, the parents and the sisters of accused No.2 were residing, the witness deposed that when they went to the said house, no other persons were present. Both the accused persons went with them from Mudgal Police Station and shown the items at Devdurga. Police asked the accused about 37 the items and then, noted down whatever told by the accused. Firstly, one accused took out the items and thereafter another accused took out the objects. The accused, who took out the articles are one knife and one blood stained cloth i.e., shirt. Totally, there were three packets and all the packets were sealed. He has signed on the sealed packets. He has denied the suggestion that Police had not taken him to Devdurga and at the instance of Police he is giving false evidence.
36. PW-29/Sanganna, CPI has deposed in his evidence in the examination in chief that on 07.06.2007 at 11.05 in the morning, PW-28/CPI, Devdurga brought and produced before him a jeep bearing No.KA-25-B-3187 and also accused Nos.1 and 2/Suresh and Nagaraja, respectively. When he enquired the accused persons, they admitted the guilt. Hence, he took them to custody. CPI, Devdurga has submitted the report as per Ex.P-48. For having received the same, he signed it as per Ex.P-48b. Thereafter, the accused gave the voluntary statements and he recorded the voluntary statements and obtained the signatures of accused Nos.1 and 2 to the voluntary statements. As per the 38 voluntary statements, the accused persons stated that they had hidden the blood stained knife and the clothes. If they were taken, they will point out and produce the same. The voluntary statement of accused No.1 is as per Ex.P-50 and the signature of accused No.1 is Ex.P-50a and his signature is at Ex.P-50b. Accused No.2 also gave the voluntary statement as per Ex.P-51 and P-51a is the signature of accused No.2 and his signature is Ex.P-51b. Then he secured panch witnesses i.e., PW-3 and PW-5 and went to Devdurga. Firstly, accused No.1/Suresh alighted from the jeep and took them to the house and took out one big knife and also produced one blood stained shirt. M.O.12 is the blood stained knife having wooden handle and blood stained half sleeves blue colour shirt, one pant produced by accused No.1 having blood stains, one sandow baniyan having blood stains and one blue colour nikker were produced by accused No.1. All these items were packed separately and sealed. Then accused No.1 was taken to the jeep and thereafter, they took accused No.2, who produced one full sleeves shirt blood stained, one jeans pant with leather belt blood stained and they were packed and sealed. About the panchanama, photographs were taken as per Ex.P-26. 39 His signature is as per EX P-26(B). The seized articles were subjected to PF and obtained permission from the JMFC to retain them.
37. In the cross examination, PW-29 denied the suggestion that accused Nos.1 and 2 have not given the voluntary statements as per Exs.P-50 and P-51 and by threatening them, he obtained their signatures as per ExP-50(a) and 51(a). He denied the further suggestion that accused Nos.1 and 2 had not took him and the panchas to Devdurga and they had not produced M.O.12/Knife and M.O.13-18/Clothes before him and he had not seized them. He has denied the suggestion that there were no blood stains to the said vehicle. He denied the suggestion that M.O.s 13 to 18 were not belonging to accused and for the purpose of this case, he himself had planted them. He has denied the further suggestion that he himself had put the blood in the jeep and collected M.O.s 9 to 12 stating that they were from the jeep and sent it to FSL. When the accused gave the voluntary statement before him, panchas were present.
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38. Perusing all these materials i.e., Ex.P-26/Seizure mahazar, Exs.P-50 & 51/Voluntary statements of accused persons, M.O.s-12 to 18 coupled with oral evidence of PW-3 and PW-29, the prosecution has established that accused Nos.1 and 2 gave the voluntary statements and led the Police and the panchas to the said place and took out the material objects one after the other and produced before the Police.
39. In the oral evidence of PW-3 and PW-29, except making the suggestions, which suggestions were denied by the witnesses, nothing has been elicited from their mouth so as to disbelieve the case of prosecution about the seizure of M.O.s-12 to 18 on the voluntary statement of accused Nos.1 and 2. It is no doubt true that there is only one seizure panchanama under Ex.P-
26. But the voluntary statements of accused Nos.1 and 2 have been recorded separately and even the evidence of witnesses and the contents of mahazar Ex.P-26 clearly shows that after going to the said place, firstly accused No.1 only alighted from the jeep and they left accused No.2 along with the staff in the jeep itself. Accused No.1 took them into a house and produced the blood 41 stained knife/M.O.12 and his blood stained clothes. Thereafter, accused No.1 was brought back and left in the jeep. Then, accused No.2 was alighted and took the Police and the panchas to the house and produced the blood stained clothes. Therefore, everything has been done separately. But the panchanama in respect of recoveries at the instance of accused Nos.1 and 2 is only one panchanama i.e., Ex.P-26.
40. During the course of cross-examination of witnesses PWs-3 and 29, it is not the case of the defence that accused Nos.1 and 2 together went and took out and produced MOs.12 to 18 at one and the same time. Therefore, drawing a single panchanama for the seizure of articles produced by accused Nos.1 and 2 may be an irregularity, but looking to the other attending circumstances and the evidence for the seizure of said articles at the instance of accused Nos.1 and 2, it cannot be said that it is an illegality and the Court cannot rely upon it, as contended by the learned counsel for the accused.
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41. We have perused the inquest mahazar at Ex.P-2, spot panchanama at Ex.P-11, blood stained place panchanama at Ex.P- 12, panchanama for the seizure of clothes of the deceased at Ex.P- 15 and mahazar for the seizure of vehicle at Ex.P-16.
42. We have also perused the oral evidence of PW-
2/Basavaraj, who is the Panch witness. He has deposed in his evidence in the examination in chief that on 06.12.2007 he had been to his aunt's house at Upparnandihal and when he was talking at about 5.30 or 6.00 p.m., at that time, the people in the auto and others informed that Police has been murdered. Then, he proceeded on his motorcycle to see the same and he has seen the dead body of Mallikarjun, which was by the side of Upparnandihal road, which place was 1 k.m. away from Amdihal. When he had been to the said place, PSI was there. He was there upto 9-10 p.m. the inquest panchanama was conducted from 10.30 to 11.30p.m. In the inquest panchanama injuries on the neck and on the back side of the neck, abrasion injuries to the upper limbs were noted. One Shivashankar Gowda, who was another pancha the native of Upparnandihal village was with him. 43 He has signed the inquest panchanama/Ex.P-2 as per P-2(a). The contents of the mahazar were read over to him, then he put his signature and photos were also taken at that time. He had seen 8 photographs. They were the photographs of the dead body as per Exs.P-3 to P-10. On the next day i.e., on 07.12.2007, he was called to the Police Station in connection with the panchanama. Again they went to the place where the dead body was found lying. They saw the blood, which was spilled, at the said place and the blood was also on the road. The blood stained sand and the sample sand was collected, packed and sealed and he signed on the sealed packets. The Panchanama was drawn as per Ex.P-11 and his signature is as per P-11a. On the same day, Police took them to Upparnandihal village. Himself and Shivanshankar Gowda and CPI went. There was house of Kairwadagi Sharanappa Gowda. They saw the blood on the road in front of his house. Then Sharanappa was called and enquired. Sharanappa told that the said blood was spilled from cruiser vehicle at the said place. As the blood cannot be removed from the road portion, panchanama was conducted as per Ex.P-12 and P-12a is his signature.
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43. When the inquest panchanama was conducted, it was done in the head light of the vehicle, gas light and rechargeable battery light. When all these three panchanamas were conducted Shivashankar Gowda was with him. On the second day also, photograph was taken as per Ex.P-13. In respect of the place, where the blood was spilled on the road at Upparnandihal, photograph was taken as per Ex.P-14.
44. In the cross-examination, PW.2 has denied the suggestion that on that day he had not gone to Upparnandihal and his aunt was not there. Earlier to the said panchanama, he had not acted as pancha. When police came to the spot, about 40-50 people were there. The dead body was lying by the side of the tar road. When he saw the dead body, it was in a supine position, the head towards south and lower limbs towards north. At about 6.00 p.m., when he was at place, where the dead body was lying, PW- 1/Veeresh and others were there. At 6.00 p.m., CPI came and after 10-15 minutes Dy.S.P. and thereafter S.P. came to the said place. When he came, it was about 9.30 p.m. When he went to 45 the said place at 6.00 p.m., the shifting of the dead body i.e., up to 11.30 p.m., he was present there. Then the police left two constables at the spot and others went away. He also went back and the dead body was taken by the Police. He put his signature to the panchanama at the spot itself. The paper on which he had signed, was written. Shivashankar Gowda had also signed. He did not know, who others had signed it. He has denied the suggestion that on that day, he had not gone to Upparnandihal and not to the place, where the dead body was lying, no writing was made at the said place and he had not signed. He denied the further suggestion that he put his signature in the police station. Mirza Studio person taken the photographs. He does not know the name of the photographer but the people were calling him as Mirza. On the next day, he was taken to the spot and Police made the writing in their presence. While conducting the spot panchanama, the blood stained sand and sample sand was collected and seal was put with letters DAK. He has deposed that he cannot say how many injuries were on the body, but all over the body, there was blood. Hence, he cannot say how many injuries were there. He has denied the suggestion that on the next 46 day also, he was not taken to any place and photograph was not taken. To the writing made nearby the house of Sharanappa Kairawadagi, himself and Shivashankar Gowda have signed. He denied the suggestion that he had not gone to Upparnandihal, Sharnappa Kairawadagi has not shown the blood on the road, he has not seen the blood. He has denied the further suggestion that he put all his signatures in the Police Station and gave false evidence at the instance of the Police.
45. PW-3/Hussainappa has deposed in his evidence in the examination in chief that on 07.12.2007 i.e., about 10 months back, when he was moving nearby the Mudgal Police Station, Police called him in connection with the seizure of clothes on the dead body. Police shown him one Khaki shirt and Khaki pant, belt, one drawer, white baniyan, police name plate, white thread and they were sealed. All clothes were blood stained. Shivappa was the another pancha present at that time. He had signed on Ex.P-15 as per P-15a. He had identified MOs.-1 to 18 when they were shown in the Court (as mentioned by the Trial Court in his deposition). Their signatures were taken on the packets. One 47 hour after the said panchanama, Police have seized the Cruiser vehicle bearing No.KA-25-B-3817 under the seizure mahazar, photograph of the cruiser vehicle was taken. He had signed the seizure mahazar/Ex.P-16 as per P-16(a). There was blood in all the places of cruiser. The blood was on the mat also. He has seen 9 photographs in respect of Cruiser vehicle marked as per Ex.P-17 to 25.
46. In the cross-examination, PW-3 has deposed that he is running ration shop. Police station is at the distance of half kilometer from his house. He has denied the suggestion that he was very close to the Police on the apprehension that otherwise they will file a case against him. Except the panchanama stated above, he has not signed any other panchanama. When the vehicle and the clothes of the deceased were seized, accused and C.Ws.-25 and 26 were present. He was in the Police Station at 10.10a.m or 10.30a.m. Police drawn the panchanama and obtained his signature. Police have seized the clothes and sealed them and obtained his signature. Firstly, the blood stained clothes were seized and sealed. There were 8 packets and his signature was 48 obtained on all the 8 packets. When Exs.P-15 and P-16 panchanamas were conducted, it was about 12.30. Inside the vehicle, there was blood and there was no blood outside the vehicle. He has denied the suggestion that panchanamas under
Exs.P-15 and P-16 were conducted in his presence and under the panchanama nothing has been seized. In the vehicle, there were two mats and the seat was having blood stains. M.O.10-mat was by the side of the driver. M.O.9-Mat was at the place of gear box. He has denied the suggestion that if mat is put to gear box, there will have to be three holes. There was only one hole to the said mat. M.O.9 was having one hole.
47. PW-29/Sanganna CPI, has deposed in his evidence in the examination in chief that on 06.12.2007 at 6.00 p.m, PSI Mudgal informed him about Mudgal Police station Cr.No.107/2007. Then immediately, he went to the spot which was in between Uparnandial and Amadihal Mudgal PSI and ASI also came there. He took the further investigation from ASI.
Immediately, he requested the SP to send the dog squad and finger print experts. Accordingly, they came and verified the 49 place. He left the ASI and PC 569 at the place to keep watch on the dead body and to check the cruiser vehicle bearing KA25 B- 3817. He went towards Upparnandihal-Lakihall-Sajjalgudda. He has deposed that at Upparnandihal village, he enquired with Sharanappa Khairavadagi, who informed that one cruiser jeep went towards Lakkihal from Nandihall and he also told that nearby his house, they put the break and stopped the said vehicle and asked him whether the said road goes to Ilkal. Thereafter, the said jeep went in a high speed. Sharanappa Khairavadagi told him that when the break was applied to the jeep from the back side door blood was soaked. P.W.29 has further deposed that after seeing the same, through his wireless, he asked to send finger print experts and dog squad. In the presence of PW-2/Basavaraja and CW-3, he conducted the inquest panchanama. As it was dark, he arranged for the light and conducted the inquest panchanama and photographs were also taken through photographer. He has also recorded statement of PWs-5 to 7 and CW-7. Through P.C.569/Gangadhar, he sent the dead body to the doctor for PM Examination. Then he came to the Mudgal Police station. By the time, the SP also came there and he enquired with RTO, 50 Dharwad, over phone and came to know that said jeep belongs to one Thimmavva Harijan of Guddadahulgatte in Kalagatagi Taluk. He also phoned to CPI Kalagatagi and asked him to get the information by going to Hulgatte village and to ascertain whether the said jeep belongs to Thimmavva or not. The said CPI went and enquired and informed him that it belongs to Thimmavva and as she was not getting the hire, same was sent to Parvathi, the staff nurse, at Devdurga who is the daughter of Thimmavva Harijan. Then the SP phoned to CPI, Devdurga and informed to ascertain the vehicle and to bring and produce the vehicle and also the accused persons. He also made efforts during the night for the said vehicle. On 07.12.2007, again, he visited the spot and in the presence of witnesses Basavaraj and Shivashankargowda, he conducted the spot panchanama and from the spot, he collected sample sand and blood stained mud mixed with sand and put the same in a separate plastic container packed and sealed. About this panchanama also, photo was taken. P.W.29 has stated that Ex.P2 is the inquest mahazar and his signatures are Ex.P-2(b) and (c). Ex.P-11 is the spot mahazar and his signature is p-11(b). Then, he went to Upparnandial, the place where the blood was soaked. On 51 the request of P.W.8 and in the presence of PW-2/Basavaraj CW- 3, he conducted the panchanama. As it was the tar road, they were not able to collect the blood. Photo of the place was taken and he had also recorded the statement of PW-8/Sharanappa. Then he came back to police station. Gangadar-PC who carried the dead body for PM Examination brought the uniform and other material objects, which were on the dead body and produced before him. He seized them in the presence of Husainappa Kattimane PW-3 and Shivappa CW-5. The clothes which were blood stained were khaki shirt having name plate and acil guard, one khaki pant, one white sandow baniyan and one blue color drawer and one nylon black colour belt, waist thread and a pair of black colour ammunition shoe and a pair of socks. Item Nos.1 to 7 were separately packed and item Nos.7 and 8 were also put in a plastic carry bag and sealed them by using the seal DVK. Ex.P-15 is the said seizure mahazar and his signature is P.15(b) and the seized material objects are M.Os.1 to 8. Then at 11.05 a.m., CPI Devadurga brought and produced jeep bearing No.KA-25-B-3817 and also the accused Suresh and Nagarja along with his report. He interrogated the accused and took them to 52 custody by observing the arrest formalities Ex.P-48 is the report of CPI Devadurga. Then, he recorded the statement of PW- 9/Kotrappa and PW10/Paramappa, who have identified the cruiser jeep. He verified the said jeep in the presence of PW- 3/Husainappa and C.W.5/Shivappa and said jeep was bearing No.KA-25-B-3817 and on back side glass, it was written as "Thande Taayi Krupa". Left side foot rest was blood stained and Left side body of the jeep was also having blood stains and he opened the front door of the jeep. The driver's seat cover, rubber mat below the gear box and also rubber mat at the driver's place were all blood stained. He seized rubber mats and also the blood stained seat by cutting it and sealed separately. Photo was also taken in this connection, panchanama was conducted as Per Ex.P- 16 and P.16(b) is his signature. The blood stained mat at the gear box and the blood stained mat at the driver's foot rest, a seat cover are M.Os.9 to 11.
48. In the cross examination, P.W.29 has deposed that he reached place where the dead body was lying. At 7.00 p.m., PSI gave the information to him and he was at the place of dead body 53 for about half an hour. When the SP, Dy.SP and IGP came to the spot, he was present there. The superior officers were there at about 10-15 minutes. At the time of inquest panchanama, the mother and wife of deceased were not present. He admitted as true that in inquest mahazar, it appears that injuries were caused with big size knife. The inquest mahazar was not sent at the time of PM examination. He denied the suggestion that during that night, he had not conducted inquest mahazar as per Ex.P-2 and it was conducted on the next day in the Police Station. He denied the suggestion that he conducted Ex.P-2 panchanama after securing M.O.12 knife and the accused persons. When he was asked that in PF Form No.74/07, two items were mentioned which were concerned to Manjunath. P.W.29 admitted the same and deposed that it was wrongly mentioned. He denied the suggestion that he got two pages typed and accordingly, he gave his chief examination. But he referred the CD and deposed that in Mudgal Police Station, there is no telephone register. On that day, no complaint was registered stating that from Mudgal bus stand, they received the complaint and deceased P.C.Malikarjun was sent to said bus stand. There is no entry made in the CD 54 about PW-19/Venkatesh of Pan beeda shop informing the Police Station that he has seen dead body of Mallikarjun. He denied the suggestion that he has not informed anything to the SP and dog squad has not came. He has not secured complaint register extract from Mudgal bus stand control room and he has not secured the documents about the arrival of the buses or 407 jeep to the said place. He denied the suggestion that he is falsely deposing that after seeing the dead body during the night, he went in search of vehicle and met PW.8 recorded his statement. He also denied the suggestion that on the next day, when he had been to house of PW.8, on the tar road, there were blood stains and it was not possible to collect the same and PW-8 had not shown any such place having blood stains and he had also not seen such place having blood stains on the road. He denied the further suggestion that he along with his superior officers together registered this case at 12.00 mid night and before registering the case, he secured the vehicle, the accused and PW-12/suguresh and 15/Manjunath. He denied the suggestion that he is falsely deposing that on 7.12.2007, he went to spot and conducted the spot mahazar. He denied further suggestion that at the spot and 55 nearby the house of PW-8, no photographs were taken and he had not seized the clothes belonging to the deceased.
49. The prosecution had also examined Sharanappa Khairawadage as PW.8, who in his evidence in the examination, has deposed in chief that Police have recorded his statement. His house is by the Upparnandihal road side. The said road proceeds from Mudgal to Sajjal Gud and then to Ilkal. On 06.12.2007, when he sat in front of his house, at about 5.15.p.m., one cruiser jeep came from the side of Mudgal. It was stopped and they spoken to him and the driver of the said cruiser vehicle asked him whether the said road proceeds towards Ilkal and for that, he told that it leads to Ilkal. Then, they started the vehicle and proceeded towards Ilkal. Then, he saw that there was blood on the tar road in front of his house and he was thinking as to why there was blood at the said place, and within 2 to 3 hours thereafter, there was news that police expired. At 11.30 or 12.00 noon, on 7.12.2007, police enquired with him and he told about the blood in front of his house. On 8.12.2007, again police came and again he was enquired.
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50. In his cross examination by the counsel for the accused, PW.8 has deposed that, in his village, the road proceeds from east to west. On either side of the road, there are houses facing towards the road. At the distance of 50-60 feet from his house there are other houses. In front of his house, there are other houses. After seeing the blood dropping from the jeep, immediately he did not inform the police. But he informed Shivanshankar Gowda, the elder person of his village. During that night at 8.30 or 9.00 p.m., Shivashankar Gowda went to the police to inform the same. On that day, at about 9.30 or 10.00 p.m., the police sub inspector came. They inquired with him and made the writing. During night, when came to the place, PSI seen the place where the blood was seen on the road. On the next day at 11.00 or 11.30 am, again police came to the said place and photo was taken at the said place. When he was asked whether police have collected the blood by digging the place, he answered that as it was a tar road, it was not possible to collect. He told the number of the jeep before the Police he denied the suggestion that on that day no such cruiser jeep came there nor he was asked 57 anything nor he has told anything to them and he is deposing falsely. He denied the further suggestion that no police came there nor they have enquired with them nor he has told anything to them nor any such panchanama was conducted at the said place and at the instance of police he is giving false evidence.
51. We have perused the mahazars, which are referred above, oral evidence of PWs-2, 3, 8, 28 and 29. We have also perused the photographs and the material objects. During the course of cross examination of witnesses, except minor discrepancies, nothing has been elicited to disbelieve the said panchanamas. Looking to the photos and material objects and the oral evidence of the above said witnesses, the prosecution has satisfactorily established about the said panchanamas. Therefore, the contention of the counsel for the accused that there is no acceptable evidence regarding the panchanamas cannot be accepted at all.
52. It is contended by the learned counsel for appellants/accused that there was no motive for the appellants to commit the murder of deceased Mallikarjun and it is also his 58 contention that when there are no eye-witnesses to the incident, prosecution has to prove the motive for committing the alleged offence by the appellants/accused. Motive can be inferred by the Court by looking to all the materials placed on record during the course of trial. Looking to the oral evidence of prosecution witnesses, it is established that the accused persons picked up quarrel with the driver and conductor of the bus nearby the bus stand and even it has come on record that public assaulted the accused and P.Ws-12 and 15 because of the said incident. In connection with that incident, police i.e., deceased Mallikarjun came out of the police station to the spot. He pacified the quarrel and asked accused persons to take the vehicle to the police station and the said Mallikarjun also sat in the said cruiser jeep. It has also come on record through the prosecution witnesses that though the said PC by sitting in the Cruiser jeep gave the signal by hand to take the jeep towards left side, as the Police Station was on the left side, the accused took the said cruiser jeep on the right side in spite of such signal by the PC and proceeded further. Thereafter, the dead body of the PC was found on Amadihal- Upparnandihal road side. The mahazar for the seizure of the jeep 59 and the photographs taken in respect of the jeep also show that the jeep was full of blood, which is established by FSL report Ex.P-49. From all these materials, we can infer that when deceased Malikarjun asked the accused to take their vehicle to police station, it was their apprehension that by taking them to police station, they will be harassed and criminal case will be booked against them Therefore, to get rid of these things, they have committed the murder of the deceased.
53. Learned counsel for the appellants/accused during the course of his arguments submitted that when it is the definite case of the prosecution that accused Nos.1 and 2 when proceeding in the Cruiser jeep, PW-12/Surguresh and PW- 15/Manjunath also accompanied them in the said vehicle till Mudgal bus stand and after having the meals in the hotel, when they started to proceed, quarrel took place between accused Nos.1 and 2 and the driver and conductor of the bus and same was informed to the Police and the P.C./Mallikarjun came to the place and pacified the quarrel and then by sitting into the jeep, P.C./Mallikarjun asked accused Nos.1 and 2 to take the vehicle to Police Station and when PWs-12 and 15 were about to board the 60 jeep, the P.C. made them to alight at the bus stand itself and then the jeep was proceeded, if that is so, they are the material witnesses in the case. It is further submitted by learned counsel appearing for the appellant that though it is the statement of PWs-12 and 15 that on 06.12.2007 itself, they waited in front of the house of accused No.1 till midnight and accused Nos.1 and 2 came along with the jeep, their clothes were blood stained and when they asked, accused Nos.1 and 2 confessed before PW-12 and 15 that they requested the Police and as he did not heed to their request, they finished off him. If it is the truth, immediately PW-12 and 15 could have informed the same to the Police, which is not done in this case. He has also submitted that looking to the conduct of PW-12 and 15 of not informing the Police about the extra judicial confession by the appellants made before them and even the Police during investigation have not made any attempts to secure PWs-12 and 15 at the earliest to record their statements, the theory of the prosecution that appellants accused made extra judicial confession before P.Ws.12 and 15 about they committing the offence cannot be accepted.
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54. Looking to the materials on record even PWs-12 and 15 are not the eye-witnesses to the incident of murder of deceased by the appellants. Their evidence is that they have seen deceased Police Constable while sitting in the jeep proceeded along with accused Nos.1 and 2 in the jeep so as to go to the police Station. The evidence of prosecution witnesses namely PW-9/Kotrappa, PW-10 Paramappa PW-11 Chanabasappa, would clearly shows that PW-12 and 15 were also present at the said place when the quarrel was going on between the accused and the KSRTC driver and conductor. Their evidence is also specific that when these two persons wanted to board the jeep, the Police Constable did not allow them to board the jeep. Apart from that, looking to the evidence of PWs-12 and 15, they have deposed that when accused Nos.1 and 2 made the extra judicial confession about they committing the murder of Mallikarjun/P.C., they were having the fear and they were frightened and because of that reason, for a period of one week they left Devadgurga and went to house of their relation at Shahpur and Haliyal respectively and returned back only on 14.12.2007, and on the next day i.e., on 15.12.2007, they gave their statement under Section 164 Cr.P.C. before the 62 Magistrate Court at Lingasugur. In view of all these attending circumstances, the presence of PW-12 and 15 at the place nearby the bus stand at Mudagal along with the cruiser jeep with accused Nos.1 and 2 cannot be disbelieved at all, when the other materials show their presence at the said place.
55. PW.26-Dr.Shankar Pawar, in his evidence, has deposed that on 07.12.2007, on the requisition of CPI, Maski, he conducted the PM examination over the dead body of Mallikarjun S/o Hampay Balegar. He conducted the PM examination from 9.20 a.m 10.40 a.m. and he has spoken in detail about the injuries on the dead body and also about the condition of the dead body and gave his opinion as to cause of death that the person died due to hemorrhage and shock as a result of injury of vital artery and injury to trachea due to stab injury over neck. Time since death might be in between 16 to 18 hours from the time of examination He issued PM report as per Ex.P-46 and P.46(a) is his signature. He has further deposed that on 24.01.2008, the CPI produced the weapon before him and on examination, he opined that injury found on the dead body might have been caused with same 63 weapon sent to him. He gave his opinion as per Ex.P-47 and P.47(a) is his signature. He had seen the weapon MO.12 and that was is the weapon sent to him by the Investigating Officer. If a person is assaulted with M.O.12, the injuries found on the dead body can be caused and death can be caused.
56. In the cross examination, PW26 has deposed that while sending the dead body for PM examination, the CPI had mentioned the injuries in the requisition. He has corrected the time of examination and also the time of dispatch of dead body. He has initialed these corrections. By oversight, mistake occurred in mentioning the time. He had not mentioned the time of examination up to 10.40 at Ex.P-46. He admitted as true that in Ex.P46 original entry was 8.20 and it was corrected as 9.20. He had also admitted as true that the time of receipt of the dead body at 8.10 to 9.10 and the time of dispatch was also corrected from 9.40 to 10.40 a.m. He had admitted as true that CPI had also mentioned the dimensions of injury No.1. He had admitted as true that in Ex.P-46, injury No.1 was corrected from 8 cm. to 6 cm. and depth of injury is corrected to 7 from 2. Police have not 64 asked to correct these entries and he corrected them on his own. Injury No.1 was stab injury, No.2 was a cut injury. He admitted as true that he estimated death on the basis of rigor mortis. He admitted as true during winter, it takes 24-36 hours of longer time for the appearance and disappearance of rigor mortis. He denied the suggestion that injuries found on the dead body could not be caused with MO.12. When MO.12 was sent to him for examination, it was in a sealed cover. He cannot say what was the nature of seal put to MO.12 when sent for examination. If assaulted with MO.12, the injuries found on the dead body like stab injury and the cut injury would be caused. Abrasion injuries found on the dead body cannot be caused with MO.12. He denied the suggestion that he gave the opinion as per Ex.P-46 as stated by the police.
57. Looking to the evidence of this PW-26, we have noticed the corrections said to have been made by the said witness in Ex.P-46 regarding the time of receipt of dead body and dispatch of dead body and also depth of injury No.1. He has offered his explanation that, by mistake, it was done and he has 65 made the corrections on his own and not at the instance of the police. But, he has consistently deposed that except the abrasion injury, the stab injury and cut injury can be caused if a person is assaulted with object like MO.12.
58. Prosecution had sent the material objects to FSL for examination and report. The FSL report, produced as per P-49, show that totally 18 items at Sl.Nos.1 to 18 were sent to FSL and item No.2 is the sample mud. Looking to the result of analysis in Ex.P-49, it is mentioned that except article at Sl.No.2, all other articles were stained with blood. The serology report origin of the blood stains with reference to item Nos.1 and 3 to 18 are stated and they are stained with human blood. Blood group is also mentioned as 'B' blood group.
59. We have also perused the decisions relied upon by the learned counsel for the appellants/accused, which are referred above and the principles enunciated in the said decisions. Perusing the facts and circumstances in those reported decisions and also the facts and circumstances in the case on hand, they are 66 not one and the same. Therefore, those decisions will not come to the aid and assistance of the defence of the appellants. If the entire materials placed on record during the course of the trial, i.e., both oral and documentary, and its cumulative effect is seen, it clearly shows the complexity of the appellants in committing the offence. The trial Court has considered the oral and documentary evidence properly and rightly convicted the accused for the offence punishable under Section 302 of IPC. No illegality has been committed by the Trial Court in coming to such conclusion. If at all the accused were not involved in committing the said offence, they could have established the same during the course of examination and they could not have given the voluntary statement nor produced the MO.12/Knife and the blood stained clothes, which fact is also established by FSL report Ex.P-49. Regarding the blood found in the vehicle also, during the course of cross examination, it was suggested to PW.29 that he brought the blood spilled in the vehicle and then taken out M.Os.9 to 11 i.e., two rubber mats and the seat with cover, which suggestion itself is most improbable and unnatural. Looking to the entire materials on record, we don't find any illegality in the judgment of 67 the trial Court nor there are any valid and justifiable grounds for this Court to interfere with the judgment of the Trial Court.
60. Even with regard to the sentence also, the Trial Court, after considering nature and gravity of the offence and materials placed before it, has rightly imposed the sentence of life imprisonment with fine. Hence, the sentence imposed is also in accordance with law. Accordingly, appeal is dismissed. The judgment and order of conviction passed by the Trial Court is confirmed.
Sd/-
JUDGE Sd/-
JUDGE Srt/BSR