Karnataka High Court
Kirankumar S/O Anandayya Hiremath vs State Of Karnataka on 25 September, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.100064 OF 2018
C/W
CRIMINAL APPEAL NO.100031 OF 2018
IN CRIMINAL APPEAL NO.100064 OF 2018
BETWEEN
1. MAHAMMAD YAKUB
S/O MAHAMMADHASIM DUKHANDAR
AGE: 24 YEARS, OCC: DRIVER,
R/O: SHIGGAON, DIST: HAVERI,
2. MUJAFAR
S/O MAHAMMAD HANIF SHIRAHATTI,
AGE: 25 YEARS, OCC: LABOUR,
R/O: SHIGGAON, DIST: HAVERI.
... APPELLANTS
(BY SRI. SHIVARAJ S BALLOLI, ADV.,)
AND
THE STATE OF KARNATAKA
BY BADAMI POLICE STATION,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
CONVICTION AND SENTENCE PASSED BY THE HON'BLE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, BAGALKOT IN
S.C.NO.73/2014 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS. 394, 302 R/W. 34 OF IPC DTD:28/11/2017 AND
29.11.2017 AND ACQUIT THE APPELLANTS OF THE
OFFENCES WITH WHICH THEY HAVE BEEN CONVICTED AND
SENTENCED.
IN CRIMINAL APPEAL NO.100031 OF 2018
BETWEEN
KIRANKUMAR
S/O ANANDAYYA HIREMATH
AGE: 24 YEARS, OCC: DRIVER,
R/O: SHIGGAON, DIST: HAVERI.
... APPELLANT
(BY SRI. LAXMAN T MANTAGANI, ADV. )
AND
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARWAD,
THROUGH BADAMI POLICE STATION.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO SECURE THE RECORDS OF
THE CASE AND TO ALLOW THE APPEAL AND INTURN
SETTING ASIDE THE JUDGMENT OF CONVICTION DATED
28.11.2017 AND ORDER ON SENTENCE DATED 29.11.2017,
PASSED IN SESSIONS CASE NO. 73/2014, BY PRL. DISTRICT
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AND SESSIONS JUDGE, BAGALKOT AND TO ACQUIT THE
ACCUSED NO.1/APPELLANT FROM THE ALLEGED OFFENCES
U/S.394 AND 302 R/W. 34 OF INDIAN PENAL CODE.
RESERVED FOR JUDGMENT ON : 25.08.2020
JUDGMENT PRONOUNCED ON : 25.09.2020
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, V. SRISHANANDA, J, DELIVERED
THE FOLLOWING:
JUDGMENT
These appeals are filed by the appellants/accused No.1 to 3 impugning the judgment dated 28th November 2017 in Sessions Case No.73 of 2014 on the file of the Principal District and Sessions Judge, Bagalkot (for short 'the Sessions Court'). The Sessions Court by the impugned judgment has convicted appellants/accused No.1 to 3 of the offences punishable under Section 394, 302 read with Section 34 of Indian Penal Code (for short 'IPC'). However, accused Nos.4 and 5 are acquitted for the offences charged under Sections 396 and 302 of IPC.
2. The prosecution's case against the accused persons is as follows:
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2.1 The accused No.1 to 5 with their common intention to commit dacoity and murder of Sumitramma, on 19.11.2013 came in auto rickshaw bearing No.KA-27/B-747 from Shiggaon to the house of deceased Sumitramma situated at Kulageri Cross; accused No.4 and 5 remained in the auto-rickshaw to keep watch; accused No. 1 being the relative of deceased Sumitramma went in her house along with accused No.2 and 3 and told her that they are proceeding to Badami and requested to accommodate them till morning. Sumitramma agreed and offered them tea and accommodated them to stay in her house. At about 3.00 a.m. accused No.1 to 3 tied the hands of Sumitramma with rope, suffocated her with a pillow on her face and stabbed her with a knife murdering her and committed dacoity of gold Bormal chain, gold Bendwale (ear stud) and gold locket worn by deceased-Sumitramma.
2.2 Police constables who were on patrolling duty on 18/11/2003-19/11/2013 grew suspicious about an autorikshaw parked at Kulgeri Cross, took custody of autorikshaw and accused No.4 and 5, enquired them and on information so received apprehended accused No.1 and 5 later accused No.2 and 3 and came to know about the incident.
2.3 Thereafter one of the patrolling personal-
Hanamappa Yamanappa Itagi (PW.10) lodged a formal complaint on behalf of state and a First information report was registered in Crime Number 0176/2013 on 19.11.2013 and the FIR was filed with the learned jurisdictional Magistrate on 19.11.2013 at 4.15 p.m. 2.4 On the basis of allegations, the investigating officer has carried out investigation. The jurisdictional police after completing the investigation filed charge sheet against the accused/appellants.
3. The learned jurisdictional Magistrate on receipt of charge sheet has secured the presence of the accused persons and committed the case for trial to the Principal District & Sessions Judge, Bagalkot, after complying with the provisions of Section 207 of Criminal Code of Procedure.
4. The Sessions Court after hearing the prosecution and the defence has framed charge against the 6 accused persons for the offences punishable under Section 302 of IPC and section 27 of the Arms Act. The accused persons denied the charges and claimed to be tried.
5. The prosecution to prove the case against the accused persons examined 23 witnesses as P.W.1 to P.W.23.
• P.W.1:Basappa Ayyappa Hiresheddi is the pancha witness to the inquest mahazar (Ex.P.1) and spot mahazar (Ex.P.3). This witness has supported the case of the prosecution.
• P.W.2: Kalakappa Irappa Bhajantri is the panch witness to the inquest mahazar (Ex.P.1), spot mahazar (Ex.P.3) and seizure mahazars (Ex.P.6 & Ex.P.7). This witness has also supported the case of the prosecution.
• P.W.3: Veerayya Shivalingayya Pujar is also panch witness to seizure mahazars (Ex.P.6 & Ex.P.7). This witness has been treated as partly hostile by the prosecution.
• P.W.4: Hanamappa Irappa Ganiger and P.W.11:Somayya Heralayya Mannur are the panch witnesses to seizure mahazars (Ex.P.9 and Ex.P.10). These witnesses have not 7 supported the case of the prosecution and have turned hostile.
• P.W.5: Rudravva @ Rudramma Mathad, P.W.6:
Devendrayya Ajjayya Mathad and P.W.7:
Veerbasayya s/o Bhadrayya Shantageri are the relatives of deceased Sumitramma, who are circumstantial witnesses, who came to the spot after receiving of information about the death of the deceased.
• P.W.8: Ravi Yamanappa Petunavar is the tenant under deceased Sumitramma and P.W.9: Yallavva Basanagouda Chikkanagoudar is the neighbour of deceased Sumitramma. These witnesses are circumstantial witnesses.
• P. W.10: Hanamappa Yamanappa Itagi is the police constable who was on patrolling duty on the date of the incident and he is the complainant, who filed the complaint (Ex.P.12) before the police. He has fully supported the case of the prosecution.
• P.W.12:Ashok Sidramappa Kanavi is the PWD Engineer, who prepared the sketch (Ex.P.13) at the place of the incident.
• P.W.13: Dr. R.H. Sanni is the autopsy surgeon, who conducted postmortem on the dead body of 8 the deceased and issued postmortem report (Ex.P.14), he removed the knife from the stomach of the deceased found in Ex.P.15-photograph.
• P.W.14:Dr. Shantagouda Pavadigoudar is the doctor who treated injured accused No.1 to 3 and issued wound certificates as per Ex.P.19 to Ex.P.21) and issued blood report (Ex.P.22) of accused No.1.
• P.W.15: Hanamant Timmanna Pujari is the police constable, who was on duty in Kulageri OP and he certified the evidence of P.W.10-complainant and P.W.19-Chandrashekhar Badiger that they brought accused No.1, 4 and 5 along with auto- rikshaw to Kulageri OP.
• P.W.16: Chulachavva Lachamappa Madar is carrier of dead body of the deceased to postmortem examination and gave report (Ex.P.25) and produced cloth of the deceased before the investigation officer.
• P.W.17: Kariyappa Balappa Mullur is the carrier of FIR (Ex.P.28) to the magistrate.
• P.W.18: Krishnaji Hanamant Salunke is the carrier of seized articles (M.O.1 to 6 and 11 to 23) to the forensic science laboratory and given report (Ex.P.29).9
• P.W.19: Chandrashekhar Hanamant Badiger was on night patrolling duty along with complainant (P.W.10).
• P.W.20: Raghavendra Veerappa Pattar is the goldsmith who apprised M.O.8 to 10 (gold articles) and gave certificate (Ex.P.30).
• P.W.21: Veerappa Tatappa Latti is the investigation officer, who received the complaint (Ex.P.12) from P.W.1-complainant and registered the FIR (Ex.P.28).
• P.W.22: Adiveppa Shivaputrappa Budigoppa is the investigation officer, who conducted investigation and after completion of investigation has filed charge-sheet against the accused persons.
• P.W.23: Dr. Vijayakumar s/o Vamadevappa H is the doctor who treated accused No.2 and 3 in District Hospital, Bagalkot and issued wound certificates as per Ex.P.39 and 43, respectively.
6. The prosecution has relied upon documentary evidence marked as Exs.P.1 to P.50 which include the inquest mahazar (Ex.P.1), photographs (Ex.P.2, Ex.P.4 and Ex.P.5), spot mahazar (Ex.P.3), seizure mahazar in respect 10 of cloths and ornaments of deceased (Ex.P.6), seizure mahazar in respect of seizure of auto-rickshaw (Ex.P.7), photograph of the auto rickshaw (Ex.P.8), Search mahazars (Ex.P.9 and Ex.P.10), statement of P.W.19 (Ex.P.11), Complaint (Ex.P.12), Sketch (Ex.P.13), postmortem report (Ex.P.14), photograph (Ex.P.15), letter of CPI dated 10.01.2013 (Ex.P.16), medical certificates of accused No.3 and 2 (Ex.P.17 and 18), wound certificates of accused No.1 to 3 ( Ex.P.20 to 21), medical report of accused No.1 (Ex.P.22), letter of CPI dated 10.01.2014 (Ex.P.23), MLC register extract (Ex.P.24),report of P.W.16 who carried the dead body of postmortem (Ex.P.25), receipt for handing over the dead body (Ex.P.26), report given by P.W.17 (Ex.P.27), FIR (Ex.P.28), report of P.W.18 (Ex.P.29), certificate issued by the goldsmith (Ex.P.30), sketch drawn by P.W.22, Property lists in P.F.No.71/2013, 72/2013and 73/2013 (Ex.P.32 to 34),call details of accused No.1 and accused No.4 (Ex.P.35& 36), property assessment extract (Ex.P.37), FSL report (Ex.P.38), wound certificate of accused No.2 (Ex.P.39), OPD chit of accused No.2 (Ex.P.4), case sheet of accused No.2 (Ex.P.41), X-ray report of 11 accused No.2 (Ex.P.42), wound certificate of accused No.3 (Ex.P.43), OPD chit of accused No.3 (Ex.P.44), case sheet of accused No.3 (Ex.P.45), X-ray report of accused No.3 (Ex.P.46), MLC report (Ex.P.47), letters of Medical officer, Badami dated 20.11.2013 and 20.11.2013 (Ex.P.48 and 49) and Copy of PCR (Ex.P.50)
7. The accused persons have got marked portion of the statement of P.W.7 as Ex.D.1. The accused persons, in their statements under Section 313 of Cr.P.C, have denied all the incriminatory materials found against them in prosecution evidence. They have not led any evidence.
8. The Sessions Court, on appreciation of the evidence on record, convicted accused No.1 to 3 for the offences punishable under Section 394 and 302 read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for five years with fine of Rs.10,000/- each with default sentence of six months simple imprisonment for the offence punishable under Section 394 read with Section 34 of IPC and also sentenced to undergo imprisonment for life with fine of Rs.15,000/- with default 12 sentence of six months for the offence punishable under Section 302 read with section 34 of IPC. It is that judgment, which is impugned in these appeals.
9. Sri. Laxman T Mantagani, the learned counsel for the appellant-accused no.1 in Crl.A.No.100031/2018 vehemently contended that the Sessions Court has wrongly convicted the first accused. According to him, the police have foisted a false case against the first accused, when appellant along with accused No.2 and 3 had gone to perform Pooja in Banashankari Temple at Badami in his newly bought auto-rickshaw the accused had parked the auto-rickshaw in front of the temple, the local auto- rickshaw drivers picked up quarrel with them and assaulted them. As such, they had been to police station wherein the police instead of registering case against the local auto-rickshaw drivers, have falsely implicated accused persons in an incident where a lady is murdered in Kulageri, which is far away from Badami.
10. He further contended that the entire case is based on circumstantial evidence; prosecution has failed to 13 establish that the deceased is the senior aunt of the first accused; seized gold ornaments-M.O.8 to 10 belonged to the senior aunt of accused No.1 and recovered from the custody of accused No.1.
11. Sri. Mantagani further argued that P.W.10 has filed a false First information at the behest of the CPI(P.W.22). The testimony of P.W.10 and 19 are interested testimony, as such, the same cannot be the basis for recording an order of conviction. It is his further argument that the impugned judgment suffers from legal infirmities as the reasoning recorded by the sessions court are on surmises and conjectures and prayed for allowing the appeal.
12. Sri. Shivaraj Ballolli, the learned counsel for the appellants-accused No.2 and 3 vehemently contended that the impugned judgment is bad in law inasmuch as the prosecution has failed to establish the nexus between the incident and these appellants. He further contended that the appellants did not know the deceased and they also did not have any acquaintance with accused No.1 or other 14 accused persons and only on the basis of the testimony of P.W.10 and 19, these appellants have been falsely roped in the case. It is his case that alleged defence of first accused that these accused persons accompanies first accused to Badami Temple cannot be a reason for establishing nexus of these accused with the incident. Mere presence of these appellants in Govinakoppa cross near Kulageri itself is not sufficient to rope in these appellants in the case.
13. It is his further argument that nothing is recovered from these appellants and the call records produced by the police do not show any calls made from the mobile numbers of these appellants. As such, the entire prosecution case gets demolished and prayed for an order of acquittal by allowing the appeal. It is his further case that the prosecution has not been able to establish with cogent evidence that the accused No.1 and these appellants had hatched a plan to take away the life of deceased- Sumitramma in order to make a wrongful gain. Therefore, appellants cannot be convicted by even resorting to section 34 of Indian Penal Code.
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14. He further argued that except the testimony of P.W.10, who is under the influence of CPI-P.W.22, no other material is available on record to rope in these appellants in the case. As such, the prosecution case suffers from legal infirmities, which has been ignored by the learned Sessions Judge while passing the impugned judgment and thus, prayed for allowing the appeal.
15. Per contra, learned Additional State Public Prosecutor fervently contended that even though case rests on circumstantial evidence, the prosecution has been successful in establishing all relevant circumstances with cogent evidence which is properly appreciated by the sessions court while recording guilt of the accused in the alleged crime. He emphasised that recovery of gold ornaments weighing 60.5 grams from the first accused would believe the defence of police implanting valuable gold only to foist a false case against the accused persons. He further contended that mere non-recovery of the gold ornaments from the custody of accused No.2 and 3 would not ipso facto render an inference that they were in no way connected with the incident especially when they have 16 failed to explain the injuries sustained by them. His further submission is that having regard to the nature injuries found on the body of Smt. Sumitramma and that she was tied up it could not be possible by one person to complete the act and as such, the prosecution case that accused No.2 and 3 have participated in the incident along with accused No.1 gets strengthened. He further argued that testimony of P.W.10 and P.W.19 who were on patrolling duty on the date of the incident is natural and inspire confidence in any court. As such their testimony could be the basis for recording conviction especially when they did not possess any previous enmity with appellants.
16. He further argued that the theory as put forward by the counsel for appellants that the first accused had been to Banashankari temple for performing pooja of newly bought auto-rickshaw is not proved in the least by placing plausible evidence on record. As such, the false plea taken by the appellant/accused No.1 would act as an additional link in the chain or circumstance and strengthen the prosecution case and prayed for maintaining the order of conviction.
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17. He further argued that just because accused No.2 and 3 were taken to Badami Government Hospital bypassing few other hospitals en-route, would not be sufficient enough to doubt the case of the prosecution and there is no bar for the investigation agency to get the accused No.2 and 3 treated in hospital at Badami. He further argued that the presence of accused No.2 and 3 within close proximity of the place of crime having been established with PW10 apprehending them at Govinakoppa cross and non-explanation as to why they were present at Govinakoppa and the fact that they were from Shiggaon itself exposes the hollowness in the case of the defence and is a strong circumstance which would aid the prosecution theory and prayed for dismissing the appeal.
18. In view of the rival contentions, the following point would arise for consideration of this Court:
"Whether the appellant in Criminal Appeal No. 100064/2018 and appellants in Criminal Appeal No.100031/2018 have made out a case to interfere with the finding of the Sessions Court whereunder they have been held guilty of the 18 offences punishable under Section 394, 302 read with Section 34 of IPC?"
19. We answer the above point in the negative for the following:
REASONS
20. In order to establish the case of the prosecution, prosecution has relied on the following circumstances:
P.W.10 and P.W.19 were on patrolling duty on 19.11.2013.
P.W.10 and P.W.19 finding auto-rickshaw bearing No. KA-27/B-747 being parked near Kulageri cross and on enquiry with the inmates, they suspected the bonafides of parking the auto-rickshaw in that hour.
Calling accused No.1 on his mobile telephone through the mobile of accused No.4.
Accused No.1 later calling accused No.4 stating that they have reached the place where the auto-rickshaw was parked earlier and P.W.10 apprehended the accused No.1 to 3 near Kulageri cross near the school situated in the vicinity of 19 Kulageri cross but accused No.2 and 3 escaped from the scene and accused No.1 being brought to outpost.
P.W.10 went in search of accused No.2 and 3 and finds them near petrol bunk at Govinakoppa cross.
Injuries found on the body of accused No.2 & 3.
Accused No.1 on being arrested, furnishes the voluntary statement and gold M.O.8 to 10 being recovered from the custody of accused No.1.
Accused No.2 and 3 got treated in Ballari District Hospital and apprehended two days later after they got discharged from Badami Hospital.
Based on the voluntary information, the police proceeding to the house of deceased Sumitramma and found dead body with a pool of blood on the cot in her room.
During the postmortem proceedings, doctor taking out the blade of the knife without handle and handing it out to the police.
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21. To establish these circumstances, the prosecution strongly relied on the evidence of P.W.10 and P.W.19.
22. P.W.1 is the panch witness to inquest mahazar marked at Ex.P.1. He has supported the case of the prosecution and has identified the material objects seized under the spot mahazar vide Ex.P.3. He also identified the photographs as Ex.P.2, Ex.P4 and Ex.P.5.; seized articles as M.O.1 to 6. In his cross-examination, he denied that he did not participate in Ex.P.1 and 3 mahazars and he is deposing falsely.
23. P.W.2 is another panch witness to Ex.P.1- mahazar. He is also witness to two more mahazars marked at Ex.P.6 and 7, whereunder one auto-rickshaw is seized. He identified the photograph of the auto-rickshaw. However, he did not support the prosecution further and as such, he was treated as hostile witness and cross-examined by the prosecution by confronting the contents of Ex.P.6 and 7-mahazars wherein he admits that the police after seizing the auto-rickshaw, have drafted Ex.P.7 but he did 21 not admit that he was present when material objects like cloths worn by the deceased and bangle pieces were seized in his presence. In the cross-examination by the learned counsel for first accused, he denied having given false evidence.
24. Another witness to Ex.P.6 and 7 is Veerayya Pujar. He did not support the case of the prosecution to any extent.
25. P.W.4 is one Hanamappa Ganiger, who is mahazar witness to Ex.P.9 and Ex.P.10, whereunder the gold ornaments, mobile handset and cloths worn by the accused persons are seized. He has not supported the case of the prosecution.
26. P.W.5.-Rudravva Mathad is a relative of deceased and she has deposed that she is residing with her husband in Karwar and on receipt of information about the murder of Sumitramma, they reached Kulageri; that she saw the dead body which was lying on the cot, and the articles kept in almirah were thieved by somebody. She further deposed that she came to know from the police that 22 Kirankumar and others had visited the house of deceased in the intervening night of 18.11.2013 and 19.11.2013 and committed the murder of Sumitramma and stolen the valuable articles from her house. She identified before the Court the first accused as relative of deceased; so also she identified valuable gold ornaments as that of deceased.
27. In the cross-examination by the first accused, she has answered that her husband received a telephone call from the neighbour of Sumitramma. She has answered that she has seen the dead body in Badami hospital around 3.00 p.m. to 4.00 p.m. She denied having given false evidence.
28. In the cross-examination made on behalf of accused No.2,3 and 5, she has answered that she has studied up to 10th standard and she admits that except the name, surname and address of accused No.1, she does not know the details of other accused persons.
29. P.W.6-Devendrayya Mathad is the husband of P.W.5. He has deposed in line with examination-in-chief of P.W.5. In the cross-examination, he has answered that 23 when they reached Kulageri around 1.00 p.m., the dead body of Sumitramma was on the cot, which was inside the bedroom and her mouth was gagged with a piece of cloth and hands were tied with rope. They found blade of the knife in the stomach of Sumitramma; they noticed that the pillow, pillow cover and bed-sheet were bloodstained and bloodstains were also found on the floor. He denies having given false evidence.
30. Another relative of deceased-Sumitramma by name Veerabasayya is examined as P.W.7. He also deposed that he came to know about the murder of Sumitramma through the neighbour of the deceased-Sumitramma and visited the house of Sumitramma. He has further deposed in line with the examination-in-chief of P.W.5 and P.W.6. In his cross-examination, he has answered that he is a resident of Mallapur, which is situated about 25 km away from the place of incident. He further answered that Sumitramma and his mother are sisters. He has answered that the mother of first accused-Kirankumar and his mother are not relatives.
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31. The neighbour of the deceased is examined as P.W.8. He deposed that he is residing in the out house of Sumitramma's house. He further deposed that on 19.11.2013 when he was proceeding to his stationery shop at Kulageri, police informed him that there is an incident in Sumitramma's house and called him to accompany them and accordingly, all of them visited the house of Sumitramma and saw bloodstains in the hall; noticed the dead body of Sumitramma on the cot in the bedroom. The hands of the deceased were tied with a rope and mouth was gagged with a cloth. He has seen a blood injury in umbilical region. The pillow, pillow cover and the bead-sheet were also stained with blood. Both the almirahs were forcibly opened and the things inside the almirah were scattered. He identified the bloodstained bed-sheet, pillow and pillow cover as M.O.1 to 3. In his cross examination, he has stated that the main house is situated about 20-30 feet away from his house.
32. Another person who resided in the vicinity of the place of incident is examined as P.W.9 and he has deposed that P.W.8 was a tenant in the out house, which belonged 25 to deceased and at around 10.00 a.m. he came to know that Sumitramma was murdered. He did not support the case of the prosecution in entirety. As such, he was treated as partly hostile and was cross-examined by the prosecution, but no useful material is elicited in such cross-examination. In the cross-examination by the counsel for first accused, he admits that Sumitramma had close acquaintance with her neighbours.
33. P.W.10 is one of the police constable, who was on patrolling duty on 18.11.2013. He deposed that he was deputed for the patrolling duty in Kulageri out-post along with P.C.No.979 (P.W.19) and at about 10.30 a.m. they left the out-post of Kulageri and proceeded to Vijayapur-Hubli Highway and then went near Navodaya School and then reached the place near Hakkapakka school situated in Badami road at about 3.30 a.m. He further deposed about finding of an parked auto-rickshaw enquiring inmates of autorikshaw; taking them to custody and enquiring them got information about accused no.1 to 3 visiting house of deceased; apprehending accused No.1 and later accused no.2 & 3 in early morning near Govinakoppa cross, 26 enquiring them and sending them for medical aid; visiting house of deceased; lodging complaint (Ex.P.12). He identified the rope (M.O.11) which was used for tying the hands of deceased and the cloth (M.O.12) which was used for gagging her mouth and also the bed-sheet, pillow and pillow cover as M.O.1 to 3. He also identified the bloodstained cloths worn by accused No.1 to 3, which were marked as M.O.16 to 22. He identified the accused persons before the Court.
34. In the cross-examination on behalf of the first accused, he has answered that he has taken Yakub and Mujafar to Badami Government Hospital. He answered that despite enquiring accused No.2 and 3 about the injuries sustained by them, they did not reveal any definite information. He has answered that he visited house of deceased as per the information provided by the first accused. He denied having concocted Ex.P.12. He admits that there is no mention in Ex.P.12 about the colour or the design of the cloths worn by the accused No.1 to 3. 27
35. In the cross-examination on behalf of accused No.2, 3 and 5, he denies that on 18.11.2013 he had worked from 10.00 p.m. till 5.00 a.m. He denies the suggestion that he was not deputed for patrolling work on 18.11.2013 or 19.11.2013. He denies having given a false complaint vide Ex.P.12 and deposing falsely. Accused No.4 has adopted the above cross-examination.
36. P.W.11 is one of the mahazar witnesses to Ex.P.9 and 10. He did not support the case of the prosecution except admitting his signatures on seizure mahazars (Ex.P.9 and 10).
37. P.W.12 is the PWD Engineer, who prepared the sketch vide Ex.P.13. In his cross-examination he has denied having prepared a false sketch.
38. P.W.13 is the doctor who has conducted postmortem examination and issued Postmortem report (Ex.P.14). He identified the photo of the knife as Ex.P.15, which was taken out from the dead body of deceased during the postmortem examination. He identified the knife without handle as M.O.23. He further deposed that on 28 22.11.2013 he has examined accused No.2 and 3 and has given blood reports of Mujafar (Ex.P.17) and Mohammed Yakub (Ex.P.18).
39. In the cross-examination on behalf of first accused No.1, he admits that there are different types of wounds viz., incise wounds, stabbed wounds, laceration wounds and contusion. He admits that eight injuries noted by him in his report are all incise wounds. He admits that he has not mentioned measurement of M.O.23 in postmortem report. He denies that M.O.23 is concocted at the instance of the police.
40. In the cross-examination on behalf of accused No.2, 3 and 5, he denied having given false reports vide Ex.P.17 and 18.
41. Doctor, who examined accused No.2 and 3 in Badami Government Hospital is P.W.14. He deposed about examining accused No.2 and 3, and first accused and issued wound certificates Ex.P.19 to 21. He further deposed that at the request of the police on 20.11.2013 he has 29 taken out the blood samples of accused No.1 to 3 and issued opinion vide Ex.P.23 and MLC register Ex.P.24.
42. In the cross-examination on behalf of the defence, except suggesting that he has issued false reports, no other useful material is elicited.
43. P.W.15 is the constable of Kulageri outpost. He deposed that on 18.11.2013, P.W.10 and 19 were deputed for patrolling duty and on 3.35 a.m. of 19.11.2013, P.W.10 and P.W.19 visited the outpost and handed over to his custody an auto-rickshaw and two persons namely Gangadhar (accused No.4) and Mohammad Shafi (accused No.5). He further deposed about the information received from P.W.10 and also handing over the custody of accused No.1 (Kiran) by P.W.10 and 19.
44. In his cross-examination, he denied that the entire contents of examination-in-chief are a story woven by the prosecution. He denied having given false evidence at the instance of higher police officials to support the false complaint lodged by P.W.10.
30
45. Woman constable, who escorted the dead body of deceased-Sumitramma, is examined as P.W.16. P.W.17 is the FIR carrier. P.W.18 is the person who had carried the seized articles to Forensic Science Laboratory. Their evidence is formal in nature.
46. P.W.19 is another constable, who was on patrolling duty along with P.W.10. He deposed in line with the examination-in-chief of P.W.10.
47. In his cross-examination, he denies the suggestion that he has not given any statement to the investigation officer. He admits that after Govinakoppa, there is outpost in Hunnur. He admits that he has not used wireless handset for informing the PSI or constables at outpost about enquiring accused No.4 and 5, who were found in the auto-rickshaw near Kulageri cross. He denied the suggestion having deposed falsely.
48. The goldsmith, who weighed the seized gold ornaments, is P.W.20. He deposed that at the request of the police, he weighed the gold ornaments, which were in the custody of accused No.1 and gave a certificate vide Ex.P.30. 31 In the cross-examination by the defence, he denies the suggestion that he has given a false report vide Ex.P.30 at the instance of police.
49. P.W.21 is the investigation officer, who registered the case Crime No. 176/2013 on the basis of Ex.P.12. He deposed about sending accused No.2 and 3 to Badami Government Hospital for treatment; enquiring accused No.1, 4 and 5 and came to know about the murder of Sumitramma; handing over further investigation to the Circle Inspector of Police.
50. In his cross-examination by accused No.1, he has denied having registered a false case against the accused persons in active collusion with P.W.10 and P.W.19. He denied that accused No.1 had visited Banashankari temple in auto-rickshaw bearing No.KA- 27/B-747 with other accused persons and accused No.4 and 5 were not there in the said auto-rickshaw; that the local auto-rickshaw drivers picked up quarrel with accused No.1 and in that scuffle, accused No.1 sustained injury and 32 in that regard he visited the police station and he has been falsely implicated in the present case.
51. Further investigation officer is P.W.22. He deposed about the arrest of the accused persons, conducting of inquest and spot mahazar, recording voluntary statements of accused No.1 to 3, seizure of auto- rickshaw, seizure of mobile telephone of the accused persons and collection of call records, postmortem report and FSL report and filing of the charge-sheet against the accused persons.
52. In cross-examination, he admits that the dog squad was pressed into service at the time of investigation but till the date of filing of the charge sheet, he did not get the report from the dog squad. So also, he did not receive any opinion about the fingerprints. He denies that accused persons have been falsely implicated in the case. He denies that there was no nexus between the accused No.1 and the death of Sumitramma.
53. In the cross-examination on behalf of accused No.2, 3 and 5 he admits that accused No.2 and 3 were sent 33 to Badami Government Hospital. He admits in the cross- examination on behalf of accused No.4 that the mobile telephone bearing No.9986690807 is belonging to one Laxmi Patil and he did not enquire said Laxmi Patil.
54. The doctor, who treated the accused No.2 and 3 in Badami Government Hospital is P.W.23. He deposed about the injuries on the body of accused No.2 and 3 and he issued wound certificates vide Ex.P.39 and 43 and out patient slips vide Ex.P.40 and 44 respectively. He identified the case sheet vide Ex.P.45, X-ray report vide Ex.P.46, MLC register as Ex.P.47.
55. In his cross-examination on behalf of accused No.2, 3 and 5, he admits that there is no date mentioned in Ex.P.39 and P.43 wound certificates as to when they were issued. He denies having given false certificates to help the prosecution.
56. Indisputably the case of the prosecution rests on circumstantial evidence. Prosecution strongly relies on the oral evidence of P.W.10 and 19 to bring home the guilt of accused. The prosecution also relies on the evidence of 34 the doctor/s, who treated accused No. 1 to 3 at the first instance and the relatives of the deceased, who visited the place of incident on receipt of information about the death of deceased have identified first accused.
57. We now revert to the circumstances on which sessions court has relied on to record an order of conviction of appellants. On perusal of materials on record, following circumstances emerge `.
P.W.10 and 19 were deputed to patrolling duty on the night of 18.11.2013 and 19.11.2013 and spotted a parked auto-
rickshaw near Kulageri cross facing towards Badami with two inmates i.e. accused No.4 and 5.
P.W.10 and 19 enquired accused No.4 and 5 and grew suspicious about the reply; as such, took the custody of accused No.4 and 5 and auto-rickshaw and handed over to P.W.15, who was in out post.
On further enquiry, they were not satisfied with reply and called accused No.1 from the mobile telephone of accused No.4 and found that accused no.1 to 3 are in Kulgeri cross in 35 Khanapur S.K. village, Badami taluk to and there was no proper reply.
Thereafter P.W.10 kept watch for suspect/s, found three persons walking near the plot of Pujari and apprehended them; two escaped. On enquiry with the captured person, P.W.10 came to know his name as Kiran Kumar, who is relative of deceased-Sumitramma. On further enquiry, they got information that Kirankumar and two other persons, who escaped from the clutches of P.W.10 near Pujari's plot, committed the murder of Sumitramma and stole valuables worn by Sumitramma and those that were kept in Almirah and accused No.1 possessed the same.
P.W.10 and 19 continued to search for escaped persons and apprehended them near Govinakoppa road, and noticed blood injuries on their body and they were also taken to the outpost and from there to the hospital at Badami.
On enquiry with accused No.1 to 5, PSI got confirmed that all of them have hatched a plan to commit the murder of Sumitramma 36 and then snatched away the valuables from her, taking advantage of her fragile status. Recovery of gold ornaments from accused No.1 and thereafter proceeding to the house of Sumitramma at the instance of accused No.1 and dead body was found.
Accused No.1 to 5 are the residents of Shiggaon and there is no explanation as to their presence in Kulageri cross which is more than 200 kilo meters away from their home town.
False explanation provided by the accused persons.
58. Prosecution has strongly relied on the oral testimony of P.W.10,15 and 19 and to prove the above circumstances. Main thrust of the argument of learned counsel for appellants is that P.W.10 and 19 are the police witnesses and therefore, their testimony cannot be believed.
59. In so far as what is the value to be attached to the official witnesses/police witnesses is no longer res- integra. It is settled law that evidence of official witnesses is 37 not to be disbelieved or discarded merely for reason that they are official witnesses. On the contrary, presumption is that every witness is impartial and independent unless proved contra. There is no reason for doubting credibility of official witnesses; if oral testimony of official witnesses inspires confidence in the court, can be basis for conviction of accused. However, before basing conviction on the evidence of official witnesses, strict scrutiny is necessary as a rule of prudence. If evidence of official witnesses is found cogent, reliable and credible, conviction can be based on evidence of official witnesses alone.
60. In Yakub Abdul Razak Memon Vs. State of Maharashtra 2013 (13) SCC 1, reiterating the principle laid down in judgment reported in (1995) 4 SCC 255, the Apex Court has held as under:-
"360. In Pradeep Narayan Madgaonkar and Ors. vs. State of Maharashtra this court upheld that:-
"11...........the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency. But prudence dictates that their evidence 38 needs to be subjected to strict scrutiny and as far as possible a corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation and requires greater care to appreciate their testimony".
xxxxxxxxx 1737. Shri Mukul Rohatgi, learned Senior Counsel appearing for the appellant has submitted that two panch witnesses were there, whereas one has been examined i.e. Suresh Satam (PW 37). His evidence cannot be relied upon for the reason that he was the brother of a Police Constable and thus, cannot be termed as an independent witness. Factually, it is true that the panch witness Suresh Satam (PW 37) himself has admitted that his brother was an employee of the Police Department of Maharashtra. Further, merely having such a relationship does not make him disqualified to be a panch witness, nor his evidence required to be ignored. In Kalpnath Rai [(1997) 8 SCC 732 : 1998 SCC (Cri) 134] , this Court has held that the evidence of police officials can be held to be worthy of acceptance even if no independent witness has been examined. In such a fact situation, a duty is cast on the court to adopt greater care while scrutinising the evidence of the police official. If the evidence of the police official is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent 39 witness was examined. (See also Paras Ram v. State of Haryana [(1992) 4 SCC 662 : 1993 SCC (Cri) 13], Pradeep Narayan Madgaonkar v. State of Maharashtra [(1995) 4 SCC 255 : 1995 SCC (Cri) 708], Sama Alana Abdulla v. State of Gujarat [(1996) 1 SCC 427 : 1996 SCC (Cri) 113] , Anil v. State of Maharashtra [(1996) 2 SCC 589 : 1996 SCC (Cri) 356], Tahir v. State (Delhi) [(1996) 3 SCC 338 : 1996 SCC (Cri) 515] , and Balbir Singh v. State [(1996) 11 SCC 139 : 1997 SCC (Cri) 134] .)
61. In a later decision, Hon'ble Supreme Court, in the case of Kulwinder Singh and another Vs. State of Punjab, (2015) 6 SCC 674 has held as under:-
"23. ...........When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence".
62. In the background above settled exposition when we analyse the material on record, it would reveal that P.W.10 and 19 in the course of their patrolling duty, on 19.11.2013 at 3.30 a.m. spotted a parked auto-rickshaw near Kulageri cross facing towards Badami. As is the usual practice in patrolling, they went near the auto-rickshaw and found two occupants; on enquiry, those persons 40 revealed that they were intending to visit Badami and they had parked their auto-rickshaw as they were feeling sleepy and also revealed that three more persons had come with them in the said auto-rickshaw. P.W.10 and 19 grew suspicious about the reply and took those persons to the outpost wherein they handed over the custody of auto- rickshaw along with inmates to P.W.15. The inmates' names were revealed as Gangadhar and Mohammad Shafi, (accused No.4 and 5). Thereafter, from the mobile telephone of accused No.4, they called one of the three persons as revealed by accused No.4 & 5 viz., Kiran (accused No.1) who answered that the work is yet to be completed and they would join them within a short while. They waited for half an hour and again repeated the call and got a reply that they would join them in the place where the auto- rickshaw was initially parked. Accordingly, leaving the auto-rickshaw and accused No.4 and 5 in the outpost, P.W.10 and 19 alone reached Kulageri cross, but they did not find any person/s as per reply. Again P.W.10 and 19 thought that Kiran (accused No.1) and others may not be coming to the spot in the absence of auto-rickshaw and 41 they got the auto-rickshaw along with accused No.4 and 5 to Kulageri cross where the auto-rickshaw was initially parked and P.W.10 and 19 kept a watch for three more persons as revealed by accused No.4 and 5.
63. In a short while, they noticed three persons were walking towards Kulageri cross near Pujari's plot and P.W.10 tried to apprehend all. But was successful in catching hold of two persons and one person escaped from the scene. When P.W.10 was trying to bring the captured two persons to the outpost, another person also escaped from his clutches. P.W.10 was successful in catching hold of (Kiran) accused No.1 and he was also brought to the outpost in the very same auto-rickshaw. On enquiry, they were able to get the details of the incident and accordingly, they informed their higher officials. As per their instructions, accused No.1, 4 and 5 were sent to Badami Police Station along with auto-rickshaw. Again P.W.10 and 19 went in search of escaped persons and traced them near Govinkoppa and apprehended them and noticed blood injuries on their body and accordingly they were taken to Badami Police station. In police station accused No.1 42 revealed that accused No.1 to 5 are all from Shiggaon town and they had hatched a plan to snatch the gold ornaments of his senior aunt taking advantage of the fact that she had retired from service and getting pension and living alone in the house situated at Khanapur S. K. Village and they kept accused No.4 and 5 for watch, and accused No.1 to 3 proceeded to the house of Sumitramma. Accused No.1 further revealed taking shelter in the house of Sumitramma and later attacked her and tied her hands with rope and gagged her mouth with a piece of cloth and assaulted her with M.O.23-knife and took away her life and they also broke open the almirah and searched for valuables and took away the valuables from her house. This part of the evidence no doubt amounts to confession as is rightly argued by the counsels for appellants and needs to be eschewed.
64. On such revelation by accused No.1, police visited the house of Sumitramma and got confirmed that Sumitramma was done to death and her dead body was lying on the cot inside the room as narrated by accused No.1. It is to be noted that till accused no.1 revealed such 43 information, police were not aware of death of Sumitramma including P.W.10. Therefore, that portion of the statement of accused No.1 can be relied by the court by resorting to Section 27 of Indian Evidence Act.
65. It is now settled proposition of law that fact discovered referred to in section 27 of Indian Evidence Act also includes mental fact and not limited to physical fact. In this regard, it would be useful to refer to the legal principles enunciated in Charandas Swami v. State of Gujarat, (2017) 7 SCC 177 wherein Hon'ble Apex Court reiterating the principles enunciated in Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, State of Maharashtra v. Damu, (2000) 6 SCC 269, [Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 has held as under:
58. The disclosure made by Accused 3 to the investigating officer was recorded in the panchnama, Ext. 188, when he had led the police party to the spot where the dead body was dumped by him. That location matched with the location from where the dead body of an unknown person was recovered on 4-5-1998 on the information given by PW 50 to the 44 local police at Barothi. The fact that the dead body was already recovered from the same place on 4-5-
1998 and so noted in the public records in the State of Rajasthan does not undermine the admissibility of the disclosure made by Accused 3 to the investigating officer about the location where the dead body of Gadadharanandji was dumped by him, which information was exclusively within the personal knowledge of Accused 3. The fact that the dead body recovered on 4-5-1998 was of Gadadharanandji, was unravelled and discovered only after the results of its medical examination became available to the investigating agency. Till then, it was considered to be of an unknown person. The courts below have accepted the case of the prosecution that the disclosure made by Accused 3 about the location where the dead body of Gadadharanandji was dumped by him, was admissible under Section 27 of the Evidence Act. The appellants, however, take exception to that by relying on the reported decisions.
59. xxxx
60. This Court has restated the legal position that the facts need not be self-probatory and the word "fact" as contemplated by Section 27 is not limited to "actual physical material object". It further noted that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. In para 128, the Court noted the statement of law in Udai 45 Bhan [Udai Bhan v. State of U.P., AIR 1962 SC 1116 :
(1962) 2 Cri LJ 251 : 1962 Supp (2) SCR 830] that:
(Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] , SCC p. 705) "128. ... '11. ... A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence.' (Udai Bhan case [Udai Bhan v. State of U.P., AIR 1962 SC 1116 : (1962) 2 Cri LJ 251 : 1962 Supp (2) SCR 830] , AIR p. 1118, para 11)"
The Court then posed a question as to what would be the position if the physical object was not recovered at the instance of the accused. That issue has been answered on the basis of precedents, as can be discerned from paras 129 to 132 of the reported judgment.
61. In para 139, the Court noticed the decision in Damu [State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088] which had dealt with the case where broken glass piece was recovered from the spot matched with broken tail lamp and in para 37 of that decision, the Court observed thus:
(Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] , SCC p. 709) "139. ... '37. How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained.46
If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the investigating officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot.' (Damu case [State of Maharashtra v. Damu, (2000) 6 SCC 269 : 2000 SCC (Cri) 1088] , SCC p.
283)"
62. xxxxxxx
63. Reliance was also placed on the recent decision of this Court in Dupare [Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 :
(2015) 1 SCC (Cri) 624] . The Court adverted to the relevant precedents and observed thus, in paras 23 to 29: (SCC pp. 267-70) "23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind.
The Privy Council in Pulukuri Kotayya v. King Emperor [Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47 : (1946-47) 74 IA 65 : AIR 1947 PC 67] has held thus: (SCC OnLine PC : IA p. 77) '... it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate 47 distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.'............
66. Further, revelation made by accused No.1 is admissible by resorting to section 8 of Indian Evidence Act as conduct attributable accused No.1. In this regard it is worth to rely on legal principles enunciated in A.N. Venkatesh v. State of Karnataka reported in (2005) 7 SCC 714, wherein it has been held as under:
'9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed 48 out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [Prakash Chand v. State (Delhi Admn.), (1979) 3 SCC 90 : 1979 SCC (Cri) 656] . Even if we hold that the disclosure statement made by the appellants-accused (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act.'"
67. Thus, the argument on behalf of appellants that the information revealed by accused cannot be relied on holds no water. As such, based on the information 49 furnished by the accused the police sub inspector took the complaint(Ex.P.12) from P.W.10 and initiated criminal action. Later, the Circle Inspector was informed. Accused No.1 took police team to place of incident and police got confirmed that information revealed by accused No.1 was correct when they saw dead body on the cot inside the room of Sumitramma. In cross-examination of P.W10, and 19, except suggesting to the effect that they were not on patrolling duty and they have filed a false complaint no other useful materials are elicited.
68. So also, P.W.15 deposed about P.W.10 and 19 taking the custody of auto-rickshaw and accused No.4 and 5 and thereafter accused No.1; and further in the morning hours of 19.11.2013 at about 6.00 a.m. accused No.2 and
3. In his cross-examination also, the defence is unable to elicit any material whereby the Court could disbelieve their testimony.
69. It is pertinent to note that P.W.10 and 19 and 15 are police personal of Kulgeri out post and were not acquainted with accused persons. They did not possess 50 any previous enmity or animosity against accused persons. When such being the case what is the benefit for P.W.10 and 19 and 15 to falsely implicate accused persons in the case on hand is a question that remains unexplained by appellants. Thus, we are of the considered opinion that the oral testimony of P.W.10 and 19 and 15 remains un- impeached and the finding of culpability by appellants recorded by the Sessions court cannot be held as perverse or unjust. Further, there is absolutely no explanation forthcoming as to the presence of accused No.2 and 3 at Kulageri cross on the date of the incident.
70. Accused No.2 and 3 also failed to offer any explanation whatsoever in regard to the injuries sustained on their body as per the wound certificates marked at Ex.P.19 to 21. Accused No.1, no doubt offered some explanation but the same is not believable as discussed infra. The doctor who examined accused No.1 to 3 and found injuries on their body and issued wound certificates vide Ex.P.19 to 21 has supported the case of the prosecution. In the cross-examination of the doctor, no useful material is elicited to belie the prosecution's theory. 51
71. Accused No.1 came with a story that he had visited Badami in a newly purchased auto-rickshaw for performing pooja; he is not acquainted with deceased; Sumitramma was not related to him. But, the suggestion made to P.W.5 by his advocate clearly shows that accused No.1 is the son of brother-in-law of deceased. In the teeth of such a suggestion made in the cross-examination, accused No.1 offering an explanation that he is a total stranger to the deceased is a false explanation. As per accused No.1, when he visited Banashankari temple of Badami along with other accused persons to perform pooja of his newly bought auto-rickshaw, there was a scuffle between the accused No.1 and the local auto-rickshaw drivers and he sustained injuries in the scuffle. But accused No.2 and 3 did not admit that they had accompanied accused No.1. The call records collected and marked at Ex.P.36 clearly demonstrates that when P.W.10, 19 and 15 called accused No.1 from the telephone of accused No.4, the call was answered by accused No.1. The tower location for said call as per Ex.P.36 clearly shows that at the relevant point of time, accused No.1 was present in Khanapur S. K. village 52 (place of incident) near Kulageri cross. This evidence of prosecution demolishes the theory set up by defence that accused No.1 was in Badami and in the scuffle he sustained injuries. There is no serious dispute as to the admissibility and veracity of call records in the absence of any objections raised by the defence during the trial. The fact of accused No.1 being identified by P.W.5 before the Court as a relative of deceased and the suggestion made by the defence counsel to P.W.5 that the accused is the son of brother-in-law of deceased and accused No.1 pleading that he is a stranger to deceased clearly establishes that accused No.1 has set up a false theory.
72. While recording accused statement of accused No.2 and 3, they did not offer any explanation whatsoever as to how the injuries were sustained by them. Moreover, it is highly unimaginable that the persons having blood injuries on their body were walking freely near Govinakoppa road at 6.00 a.m. without visiting hospital. The nature of injuries sustained by accused No.2 and 3 as is recorded by the doctor in wound certificates marked at Ex.P.19 and 20 clearly indicate that the injuries were not 53 so simple in nature so as to ignore those injuries. So also they did not offer any explanation for their presence in Govinakoppa, especially when they are native of Shiggoan town which is situated more than 200 kilo meters.
73. The investigation agency is able to recover the gold ornaments (M.O.8 to 10) from the custody of accused No.1, which were weighing 60.5 grams as per the certificate issued by P.W.20, which is marked at Ex.P.30. The theory of defence that the accused persons have been falsely implicated in the case taking advantage of homicidal death of deceased-Sumitramma by somebody else cannot be countenanced in law in view of the recovery of gold ornaments from the custody of accused No.1 to the extent measuring 60.5 grams. If at all the police wanted to wrongly implicate the accused persons in the case, why would they venture to implant 60.5 grams of gold and foist a false case against the accused remains unanswered by the defence.
74. Under Section 114-E of the Indian Evidence Act, the acts of the officials could be presumed to be regular. No 54 doubt, it is rebuttal presumption but the defence did not rebut the said presumption by placing plausible evidence on record.
75. In a case which is resting on circumstantial evidence, the evidence on record that has to be appreciated is the subject matter of catena of decisions of the Hon'ble Apex Court.
76. It is now well settled that a conviction can be on the basis of placed on the circumstantial evidence. In Hanumant and Ors. vs. State of Madhya Pradesh, AIR 1952 SC 343, it is observed as under:
"10. .....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the 55 accused and it must be such as to show that within all human probability the act must have been done by the accused...." .
77. In Bhodaraj v. state of Jammu and Kashmir reported in 2002 (8) SCC 45. Hon'ble Apex court has held as under:
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan [(1977) 2 SCC 99 : 1977 SCC (Cri) 250 : AIR 1977 SC 1063] , Eradu v. State of Hyderabad [AIR 1956 SC 316 : 1956 Cri LJ 559] , Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447 : AIR 1983 SC 446] , State of U.P. v. Sukhbasi [1985 Supp SCC 79 : 1985 SCC (Cri) 387 : AIR 1985 SC 1224] , Balwinder Singh v. State of Punjab [(1987) 1 SCC 1 : 1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Kumar Chatterjee v. State of M.P. [1989 Supp (1) SCC 560 : 1989 SCC (Cri) 566 : AIR 1989 SC 1890] ) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those 56 circumstances. In Bhagat Ram v. State of Punjab [AIR 1954 SC 621 : 1954 Cri LJ 1645] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. [(1996) 10 SCC 193 : 1996 SCC (Cri) 1205] wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P. [1989 Supp (2) SCC 706 : 1991 SCC (Cri) 407 : AIR 1990 SC 79] it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) 57 "10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
13. In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86 : 1992 SCC (Cri) 241 : 1992 Cri LJ 1104] it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
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14. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] . Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and 59 the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
78. Similar is the view taken by Hon'ble Apex Court in the case of Santosh Kumar Singh v. State, (2010) 9 60 SCC 747 popularly known as Priyadarshini Mattu's case.
79. On applying the settled propositions of law enunciated in the above decisions to the case on hand, even after appreciation of the evidence on record and finding of the Sessions Court that accused No.1 to 3 are responsible for the homicidal death of Sumitramma and snatched away the gold ornaments from the dead body of Sumitramma and the golden locket found in the almirah which are marked vide M.O.8 to 8, this Court is of the considered opinion that the prosecution has been able to prove the circumstances narrated above by placing cogent material on record and the finding of Sessions Court is based on the proper appreciation of evidence on record and with sound logical reasons and thus does not call for any interference by this Court.
80. When once the prosecution is successful in establishing its case by placing cogent evidence on record, the burden of proving the fact, which is especially in the knowledge of a person, must be placed by him. In this 61 regard this Court places its reliance on Section 106 of the Indian Evidence Act. For ready reference said section is culled out hereunder which reads:
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations:
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him."
81. It is equally well settled that a false explanation offered by the accused persons would act as an additional link of chain in the circumstances, which would strengthen the case of the prosecution.
82. Gainfully, a few decisions of the Hon'ble Apex Court on Section 106 of the Indian Evidence Act are also extracted at this stage.
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83. In Jamnadas v. State of M.P., (2016) 13 SCC 12, the Hon'ble Supreme Court held as under:
19. We have considered the above submissions in the light of evidence on the record, and the law laid down by this Court applicable to such cases.
Undoubtedly, it is a case of circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : 1984 SCC (Cri) 487], a three-Judge Bench of this Court has laid down the law as to when in a case of circumstantial evidence charge can be said to have been established. Five points enumerated in said case are summarised as under: (SCC p. 185, para 153)
(i) The circumstances from which the conclusion of guilt is drawn should be fully established. The accused must be, and not merely may be guilty, before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
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(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
20. On behalf of the appellants, it is submitted that the accused has a right to silence and no adverse inference can be drawn from his silence as to the cause of death of the deceased. In this connection, reliance is placed on para 141 of Selvi v. State of Karnataka [Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1] , which reads as under:
(SCC p. 337, para 141) "141. At this juncture, it must be reiterated that Indian law incorporates the "rule against adverse inferences from silence" which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and proviso
(b) of Section 315(1) CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial Judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties 64 from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 : 1935 All ER Rep 1 (HL)] , AC at p. 481:
'The "right to silence" is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.'"
Above observations are made by this Court in an answer to the legal question raised in the batch of criminal appeals relating to the involuntary administration of certain scientific techniques, namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. In the present case facts and circumstances are different. The above referred case, in our opinion, is of little help to the appellants in the present case.
21. In State of W.B. v. Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 :
2000 SCC (Cri) 1516] , this Court, while interpreting the burden of extent of proof on prosecution, observed as under: (SCC pp. 392 & 393, paras 31 & 36-37) 65 "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning.
The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows:
'106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.'
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
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22. Shri S.K. Jain, learned Senior Counsel, on behalf of the appellants drew our attention to Tomaso Bruno v. State of U.P. [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , and argued that to invoke Section 106 of the Evidence Act the prosecution must have proved presence of the appellants in their house at the time of the incident. We have carefully gone through the case cited before us. It was a case where CCTV footage of the hotel was available but not produced to show the presence of the accused in the hotel and, as such, the plea of alibi that the accused had gone to witness "Subah-e- Banaras" from the hotel was accepted. The present case relates to a different kind of incident where a bride has been brutally murdered inside the house and her body, after cutting into pieces, was thrown in the park.
23. In Trimukh Maroti Kirkan v. State of Maharashtra [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , which is a case similar in nature to the present one, this Court has held as under: (SCC pp. 690-91, para 15) "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively 67 lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
84. In Tulshiram Sahadu Suryawanshi and Ors. vs. State of Maharashtra, (2012) 10 SCC 373, the Hon'ble Apex Court observed as under :
"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position.
The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 68 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:
'11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts 69 which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially"
stresses that. It means facts that are pre- eminently or exceptionally within his knowledge."
85. Applying the above legal principles to the case on hand, the version of accused No.1 that he was at Badami and in the scuffle he sustained injury on his hand cannot be accepted for want of cogent material, and in view of the discussions made supra, it is for the accused No.1 to offer his explanation as to his presence at Kulageri cross of Khanapur S. K. village. Likewise, accused No.2 and 3 being found near Govinakoppa cross with blood injuries, they have to explain their presence and injuries. Admittedly the reasons for their presence at Kulgeri cross of Khanapur S. K. village and Govinakoppa is in the special knowledge of accused No.1 to 3. Prosecution cannot be expected to place positive evidence in this regard and accused No.1 to 3 is bound to explain. But no explanation is available.
86. In the absence of any such explanation, there is no bar for this court to accept the finding recorded by the Sessions Court that accused No.1 to 3 are having direct 70 nexus to the incident and therefore, absolutely there is no legal infirmities or perversity in reaching such a conclusion by the Sessions Court.
87. In view of the above, even after reappreciation of entire evidence on record, this court does not find any grounds whatsoever, much less good grounds, to interfere with the judgment of conviction and order on sentence recorded by the Sessions Court in the impugned judgment.
88. In view of the foregoing reasons, the invariable conclusion that we can reach is, both the appeals are devoid of merits and accordingly, the above point is answered in negative and the following order is passed.
ORDER Appeals are merit less. Hence dismissed.
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JUDGE yan