Karnataka High Court
Sri H K Putta vs The State Of Karnataka on 2 September, 2015
Bench: Mohan M. Shantanagoudar, R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.1201/2011 C/W
CRIMINAL APPEAL No.928/2011,
CRIMINAL APPEAL No.1092/2014,
CRIMINAL APPEAL No.1010/2011,
CRIMINAL APPEAL No.1042/2011,
CRIMINAL APPEAL No.1053/2011,
CRIMINAL APPEAL No.1216/2011,
CRIMINAL APPEAL No.1101/2012,
CRIMINAL APPEAL No.980/2011,
CRIMINAL APPEAL No.1066/2011,
CRIMINAL APPEAL No.1099/2012,
CRIMINAL APPEAL No.1100/2012,
CRIMINAL APPEAL No.1098/2012,
CRIMINAL APPEAL No.1293/2011,
CRIMINAL APPEAL No.993/2011 and
CRIMINAL APPEAL No.1037/2011
2
IN CRIMINAL APPEAL No.1201/2011
BETWEEN:
Sri H K Putta
S/o Late Kariyaiah
Aged 50 years
R/o No.19, Kurimandi Block
Kesare (Ambedkar Nagar)
Mysore-570 007. .. APPELLANT
(By Sri Prasanna Kumar P Daroji, Adv.)
AND:
The State of Karnataka
Rep. by its Public Prosecutor
High Court of Karnataka
Bangalore
Vijayanagar Police Station
Mysore. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellant/accused No.21 for the offences
punishable under Sections 120-B, 143, 148, 365, 302,
201 read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.928/2011
BETWEEN:
Sri M Mahadevu
3
S/o Madappa
Aged 36 years
R/o No.65, Hosabeedi
Siddalingapura
Mysore District. .. APPELLANT
(By Sri Ravi B Naik, Sr. Counsel for
M/s. Ravi B Naik Associates, Adv.)
AND:
The State of Karnataka
Rep. by its Public Prosecutor
High Court of Karnataka
Bangalore. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellant/accused No.19 for the offences
punishable under Sections 120-B, 143, 148, 365, 302,201
read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.1092/2014
BETWEEN:
Sridhar @ Auto Sridhar
S/o Late Padmamabha
Aged about 43 years
R/at EWS-435
Lakshmikanthanagar
Hebbal
Mysore-570 010. .. APPELLANT
4
(By Sri Prasanna Kumar P Daroji, Adv.)
AND:
The State of Karnataka
Rep. by its Public Prosecutor
Ambedkar Veedi
High Court Building
Bangalore-560 001. .. RESPONDENT
Vijayanagar Police Station
Mysore.
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the judgment and order dated
30.08.2011 passed by the IV Addl. S.J., Mysore in
S.C.NO.1/2007 - convicting the appellant/accused No.18
for the offences punishable under Sections 120-B, 143,
148, 365, 302,201 read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.1010/2011
BETWEEN:
Smt Bhagyamma
W/o Nagachar
Aged about 40 years
R/o. Jayadevanagar
Metagalli
Mysore. .. APPELLANT
(By Sri Dilip Kumar, Adv.)
AND:
The State of Karnataka
5
By Vijayanagar Police Station
Rep. by its Public Prosecutor
High Court of Karnataka
Bangalore. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellant/accused No.06 for the offences
punishable under Sections 120-B, 143, 148, 365, 302,201
read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.1042/2011
BETWEEN:
1. Mantelingaiah
S/o Rachappa
55 years
R/o No.279, New Extension
N.R. Mohalla
Mysore.
2. Vikasini
W/o Mantelingaiah
35 years
R/o No.279, New Extension
Narasimharaja Mohalla
Mysore. .. APPELLANTS
(By Sri C H Jadhav, Sr. Counsel)
AND:
State of Karnataka
6
By Vijayanagar Police Station
Rep. by State Public Prosecutor
High Court Buildings
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellants/accused No.1 and 25 for the
offences punishable under Sections 120-B, 143, 148, 365,
302, 201 read with Section 109 of IPC and etc.
IN CRIMINAL APPEAL No.1053/2011
BETWEEN:
Madhu @ Madhubala
W/o Parthasarathi
Aged 50 years
R/at P & T Quarters
5th Cross
Housing Board
Nanjangud. .. APPELLANT
(By Smt K Sheela Anish, Adv.)
AND:
The State of Karnataka
By Vijayanagara Police Station
By State Public Prosecutor
High Court Building .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
7
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellant/accused No.22 for the offences
punishable under Sections 120-B, 143, 148, 365, 302, 201
read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.1216/2011
BETWEEN:
Chandramma
W/o Babu
Aged about 36 years
R/at No.346
Lakshmikanthanagara
Hebbal, Mysore. .. APPELLANT
(By Sri H Mohan Kumar, Adv.)
AND:
The State of Karnataka
By Vijayanagara Police Station
By State Public Prosecutor
High Court Building
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellant/accused No.4 for the offences
punishable under Sections 120-B, 143, 148, 365, 302, 201
read with Section 149 of IPC and etc.
8
IN CRIMINAL APPEAL No.1101/2012
BETWEEN:
Lokesh @ Mark Lokesh
S/o Siddamadhu
Aged about 37 years
R/at No.4329, 4th Main
8th Cross, Gandhi Nagar
Mysore-570 001. .. APPELLANT
(By Kum Mubarak Begum, Adv. For
Sri R Kothwal, Adv.)
AND:
The State of Karnataka
Represented By its Public Prosecutor
High Court of Karnataka
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellant/accused No.23 for the offences
punishable under Sections 120-B, 143, 148, 365, 302, 201
read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.980/2011
BETWEEN:
Smt Devamma
W/o Siddaraja
9
Aged about 40 years
R/at EWS-378
Laxmikantha Nagara
Hebbal
Mysore. .. APPELLANT
(By Sri V Bharath Kumar, Adv.)
AND:
State by Vijayanagara Police
Represented By
State Public Prosecutor
High Court Building
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellant/accused No.15 for the offences
punishable under Sections 120-B, 143, 148, 365, 302, 201
read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.1066/2011
BETWEEN:
Gangotri Mahadeva
@ Mahadeva (A-13)
S/o Chikamallaiah
Aged about 39 years
R/at LIG-133
Lakshmikanthanagar
Hebbal, Mysore. .. APPELLANT
(By Sri Manjappa N D, Adv.)
10
AND:
State By Vijayanagara
Police, Mysore. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellant/accused No.13 for the offences
punishable under Sections 120-B, 143, 148, 365, 302, 201
read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.1099/2012
BETWEEN:
Bar Beding Nanja @ Nanju
S/o Krishnaiah
Aged about 53 years
R/at LIG 186, LakshmiKantha Nagar
Hebbal, Mysore-570 017. .. APPELLANT
(By Kum Mubarak Begum, Adv. For
Sri R Kothwal, Adv.)
AND:
The State of Karnataka
Represented By its Public Prosecutor
High Court of Karnataka
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
11
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order of conviction dated
30.08.2011 passed by the IV Addl. S.J., Mysore in
S.C.NO.1/2007 - convicting the appellant/accused No.14
for the offences punishable under Sections 120-B, 143,
148, 365, 302, 201 read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.1100/2012
BETWEEN:
Chickkandani @ Andanaiah
S/o Ramaiah
Aged about 33 years
R/at No.LIG-147
Hebbal, 1st Stage
Mysore-570 017. .. APPELLANT
(By Kum Mubarak Begum, Adv.)
AND:
The State of Karnataka
Represented By its Public Prosecutor
High Court of Karnataka
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order of conviction dated
30.08.2011 passed by the IV Addl. S.J., Mysore in
S.C.NO.1/2007 - convicting the appellant/accused No.17
for the offences punishable under Sections 120-B, 143,
148, 365, 302, 201 read with Section 149 of IPC and etc.
12
IN CRIMINAL APPEAL No.1098/2012
BETWEEN:
Nagaraju @ Kencha
S/o Shivanna
Aged about 26 years
R/at No.29,
Opp: Shankar Nursing Home
Rajendra Nagar
Kesare, N R Mohalla
Mysore-570 007. ..APPELLANT
(By Kum Mubarak Begum, Adv. For
Sri R Kothwal, Adv.)
AND:
The State of Karnataka
Represented By its Public Prosecutor
High Court of Karnataka
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order of conviction dated
30.08.2011 passed by the IV Addl. S.J., Mysore in
S.C.NO.1/2007 - convicting the appellant/accused No.3 for
the offences punishable under Sections 120-B, 143, 148,
365, 302, 201 read with Section 149 of IPC and etc.
13
IN CRIMINAL APPEAL No.1293/2011
BETWEEN:
Shivashetty
S/o Kenchashetty
Aged about 59 years
R/at No.159, Belagola
Village, Srirangapatna
Taluk, Mandya District. ..APPELLANT
(By Sri T Shivappa, Adv. For
Sri D S Malipatil, Adv.)
AND:
State by Vijayanagar Police Station
Represented By its Public Prosecutor
High Court Building
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the impugned judgment dated
30.08.2011 passed by the IV Addl. S.J., Mysore in
S.C.NO.1/2007 - convicting the appellant/accused No.9 for
the offences punishable under Sections 120-B, 143, 148,
365, 302, 201 read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.993/2011
BETWEEN:
1. Bhagya Alias
Bhagyamma
Aged about 54 years
14
W/o Janardhan
No.1639, Lakshmikanthanagar
Hebbal, Mysore.
2. Sarojamma
Aged about 59 years
W/o Nanjundaswamy
No.140, Lakshmikanthanagar
Hebbal, Mysore. ..APPELLANTS
(By Sri P Nataraju, Adv. For
M/s. P Nataraju Associates)
AND:
State of Karnataka
By Vijayanagar Police
Represented By State
Public Prosecutor
High Court Building
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellants/accused No.8 and No.16 for the
offences punishable under Sections 120-B, 143, 148, 365,
302, 201 read with Section 149 of IPC and etc.
IN CRIMINAL APPEAL No.1037/2011
BETWEEN:
Sri Jayarama
S/o Late Hanuma Bovi
Aged about 45 years
15
R/o. No.152, II Stage
Hanumantha Nagar
Bannimantap
Mysore. ..APPELLANT
(By Sri C R Gopalaswamy, Adv. For
M/s. C R Gopalaswamy and Associates)
AND:
The State of Karnataka
By Vijayanagar Police, Mysore
Represented By State
Public Prosecutor
High Court Building
Bangalore-560 001. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the order dated 30.08.2011
passed by the IV Addl. S.J., Mysore in S.C.NO.1/2007 -
convicting the appellant/accused No.20 for the offences
punishable under Sections 120-B, 143, 148, 365, 302, 201
read with Section 149 of IPC and etc.
These Criminal Appeals having been reserved and
being listed for pronouncement today, Budihal R.B., J.,
delivered the following:
JUDGMENT
The judgment and order of conviction dated 30.08.2011 Passed by the IV Additional Sessions Judge 16 Mysuru, in S.C. No.1/2007 is called in question in the above appeals.
2. Crl. Appeal No.1201/2011 is filed by appellant- accused No.21, Crl. Appeal No.928/2011 is filed by appellant-accused No.19, Crl. Appeal No.1092/2014 is filed by appellant-accused No.18, Crl. Appeal No.1010/2011 is filed by appellant-accused No.6, Crl. Appeal No.1042/2011 is filed by appellants-accused Nos.1 and 25, Crl. Appeal No.1053/2011 is filed by appellant-accused No.22, Crl. Appeal No.1216/2011 is filed by appellant-accused No.4, Crl. Appeal No.1101/2012 is filed by appellant-accused No.23, Crl. Appeal No.980/2011 is filed by appellant- accused No.15, Crl. Appeal No.1066/2011 is filed by appellant-accused No.13, Crl. Appeal No.1099/2012 is filed by appellant-accused No.14, Crl. Appeal No.1100/2012 is filed by appellant-accused No.17, Crl. Appeal No.1098/2012 is filed by appellant-accused No.3, Crl. Appeal No.1293/2011 is filed by appellant-accused No.9, 17 Crl. Appeal No.993/2011 is filed by appellants-accused Nos.8 and 16 and Crl. Appeal No.1037/2011 is filed by appellant-accused No.20.
3. Case of the prosecution as per the complaint Ex.P.2 dated 18.11.2005 filed by P.W.1 Sampath Kumar is that he is residing in house No.695 at Inakal village along with his family members. Mother of the complainant namely Gangamma (deceased) was residing at house No.334 of Lakshmikantha Nagar, Hebbala Extension. Hundreds of people were living illegally, in the houses constructed by Mysore Urban Development Authority in the said area. It was told by Akhilabharatha Janajagruthi Maha Sabha (for short 'the AJMS') Organisation to the dwellers of the area that the houses in which they were residing would be regularized in their name by approaching the Hon'ble Chief Minister and as per the instruction of Mantelingaiah- accused No.1, they had to pay certain Amount to the government. In this connection, AJMS meeting used to be 18 held in Chamundi guest house once in every 15 days and every one was insisted/pressurised to compulsorily attend the said meeting. Gangamma, the mother of the complainant gave the press statement in Kannada Prabha, a Kannada daily new paper, on 17.11.2005 against Mantelingaiah Accused No.1 and after seeing the same, Mantelingaiah (Accused No.1) became furious and instructed his followers immediately to bring the said Gangamma before him. Accused No.2 (Rowdy Sidda) pronounced that Mantelingaiah (Accused No.1) is sitting in the black colour Tata Sumo vehicle and that nobody in the area should leave their house. He was shouting loudly holding the deadly weapons in the hands. The women accompanying said Siddu were having the chilli powder in their hands and they entered the house of the mother of the complainant illegally. They held Gangamma and pulled her from the house. Said Gangamma cried because of the fear and she was requesting the people around to protect her. She fell on the ground and became unconscious. At 19 that time Bar Beding Nanja @ Nanju (accused No.14), Rowdy Sidda (Accused No.2), Chikkandani @ Andanaiah (Accused No.17), Gangothri Mahadeva @ Mahadeva (Accused No.13), Siddalingapura Mahadevu (Accused No.19), Hanumanthnagar Jayaram (Accused No.20), Krishnaveni (Accused No.5), H.K. Putta (Accused No.21), Madhu @ Madhubala (Accused No.22), Bhagyamma (Accused No.6), Gandhinagar Mark Lokesh (Accused No.23), Chandramma (Accused No.4) and others together held the upper and lower limbs of Gangamma and put her into the auto bearing No.KA-12-4272 and kidnapped her during night i.e., at 9.00 p.m. on 17.11.2005. At the instigation of Mantelingaiah (accused No.1), the above mentioned accused people, kidnapped Gangamma, the mother of the complainant. The complainant requested the Police to find out as to whether the accused have committed the murder of Gangamma or as to whether they took her to the unknown place and ill treated her; he requested the police that the above said persons are to be 20 arrested and protection is to be given to the life of his mother. Rathnamma (P.W.3) and Geetha (P.W.4) who have seen the incident of abduction came and informed about the same to the complainant. The other persons have also seen the said incident. After getting the confirmation about the said incident, P.W.1 has lodged the complaint on 18.11.2005 and the same was registered at 2.15 p.m. in Vijayanagar police station, Mysuru, crime No.186/2005 for the offences punishable under Sections 114, 144, 148, 448, 354, 365 read with Section 149 of IPC registered and FIR was issued as per Ex.P.111.
4. The complainant Sampath Kumar filed the supplementary complaint (herein after called as 2nd complaint) dated 20.11.2005 as per Ex.P.4 alleging that in connection with the kidnap of his mother (Gangamma) on 17.11.2005 at 9.00 p.m., he has already lodged the detailed complaint before the Vijayanagar police on 18.11.2005 suspecting that his mother might have been 21 murdered. On 20.11.2005, accused No.12 Shankar, son of Marigowda resident of Hebbal Extension, Lakshmikanth Nagar, met complainant and informed him in detail about the murder of the mother of the complainant. According to the complainant, the information furnished by accused NO.12 Shankar is as under:
"On 17.11.2005 at 8.30 p.m., meeting was held in Akhilabharatha Janajagruthi Maha Sabha (for short 'the AJMS') office at Lakshmikanth Nagar and thereafter, accused No.2 Rowdy Siddu told that as Gangamma has given press statement against Mantelingaiah (Accused No.1) and defamed him, Accused No.1 instructed him to bring Gangamma and to teach her a lesson. Accordingly, Siddu (accused No.2) called Shankara (Accused No.12), Chandramma (Accused No.4), Krishnaveni (Accused No.5), Bhagyamma (Accused No.6), Bhagya (Accused No.8), the friend of Sridhar (Name not known), Gangothri Mahadeva (Accused No.13) to bring Gangamma in the auto bearing No.KA-12-4247. Accordingly, they went and forcibly took 22 Gangamma and brought her nearby Vikrantha Radial Factory at Ring Road, where the black colour Tata Sumo vehicle was parked by accused No.2 Siddu and in the said Tata Sumo, Nagaraju @ Kencha (Accused No.3), Saraswathi @ Thonnamma (Accused No.7), Shivashetty (Accused No.9), Kulla Siddaramu @ Siddaramu (Accused No.10), Shobha (A-11), Bar Beding Nanju (Accused No.14), Devamma (Accused No.15), Sarojamma (Accused No.16), Chikkandani (Accused No.17) Auto Sridhar (Accused No.18) were present. Gangamma was taken inside the said vehicle and the aforesaid persons were also made to sit in the Tata Sumo and Siddu (accused No.2) brought the vehicle nearby the house of accused No.1. Thereafter, Gangothri Mahadeva (Accused No.13) and Siddu (Accused No.2) went upstairs and talked to Mantelingaiah (accused No.1) and came back to Tata Sumo. Out of them, Devamma (accused No.15), Sarojamma (accused No.16) Andani (Accused No.17), Auto Sridhar (accused No.18) were made to sit in the auto 23 rickshaw and were directed to follow Tata Sumo vehicle. The Tata Sumo and the Auto rickshaw came to Inakal and they stopped at a military hotel nearby a bakery on the Hunsur main road and they got rice and chapathi from the said hotel and went towards H.D. Kote road. Along with the meals, the liquor bottles were also purchased. When they were proceeding in the ring road nearby H.D. Kote cross, as the gas of Auto rickshaw was exhausted, Devamma (accused No.15), Sarojamma (accused No. 16), Chikkandani (Accused No.17) Auto Sridhar (Accused No.18) were sent back; after getting the diesel to Tata Sumo vehicle in the petrol bunk at Ramakrishna Nagar, they proceeded towards H.D Kote road. During the night at 10.30 or 11.00 O' clock, they saw a board as Vaddara Palya or Vodeyara Palya and there was a narrow road. Siddu (accused No.2) took Tata Sumo vehicle on the said road and asked all the persons in the Tata Sumo and also Gangamma to alight from Tata Sumo vehicle. Siddu (accused No.2) assaulted Gangamma with the iron rod and 24 kicked and made her to fall on the ground. All of them had the meals after consuming the liquor. Thereafter, Siddu (accused No.2) assaulted Gangamma with the bottle and caused bleeding injuries. Chandramma scolded in the filthy language. Siddu (accused No.2) came to assault Shankar (accused No.12) stating that he is giving information to Gangamma; at that point of time, Gangamma told accused No.2 that he was not giving any information to her. Though certain of them did not want to assault Gangamma, even then accused No.2 made all of them to stand in a queue and asked them to assault Gangamma and also to kick her. Accordingly, all of them kicked Gangamma and she fell down. Thereafter, Siddu (accused No.2) asked Shankar (accused No.12) and Gangothri Mahadeva (accused No.13) to hold Gangamma and they should leave Gangamma after he drives vehicle on her, so as to make others feel that she died in a vehicle accident. Though Gangamma requested them not to ill treat her like that and to leave her, Nagaraj (accused No.3) sat in the 25 Tata Sumo and started the vehicle and drove on Gangamma. Thereafter, Siddu (accused No.2) asked Nagaraj to alight and he sat in the driver's seat of the vehicle and drove it on Gangamma and he moved the vehicle back and front 2-3 times on Gangamma. There afterwards, they put the dead body of Gangamma into the vehicle. Shankar (accused NO.12), Gangothri Mahadeva @ Mahadeva (Accused No.13), Kulla Siddaramu @ Siddaramu (Accused No.10) loaded dead body of Gangamma into the vehicle. As the saree of Gangamma was struck to the Tata Sumo joint wheel, Shankar (accused No.12) cut it with blade and Chandramma (accused No.4) put the saree pieces on the dead body of Gangamma. Thereafter, they came back on the same road. When traveled for about 40 minutes, i.e., about 36 Kms, they saw Kabini reservoir. Thinking that the same may be Kabini canal, they went there and Siddu (accused No.2) threw the dead body into the flowing water. From there, they came and met Mantelingaiah (accused No.1) in the early morning 26 between 5.30 a.m. and 5.45 a.m. at Mysore, Chandramma (accused No.4) informed Mantelingaiah (accused No.1) about they committing the murder of Gangamma and throwing the dead body into the flowing water. At that time, Mantelingaiah (accused No.1) told them that he will look after everything and they need not be afraid of the same. Vikasini (accused No.25), wife of accused No.1 who was present there, brought and gave Rs.6,000/- into the hands of Siddu (accused No.2) and asked all of them to go to Dharmastala and to stay there for 4-5 days. Accordingly, they all went in the Tata Sumo and reached Dharmastala on 18.11.2005 at 7.00 p.m. and they took room Nos.251 and 253 in Vysali guest house. All of them had drinks. Looking to the behaviour of Chandramma (accused No.4), Siddu (accused No.2), Nagaraj (accused No.3) and Siddaram (accused No.10), Shankar (accused No.12) suspected that the accused will commit his murder also. After all the accused slept, accused No.12 Shankar escaped and went nearby Nethravathi river and spent the 27 whole night there only. On 19.11.2005 at 10.00 a.m., he spoke to one Doddanna, driver of Bidadi, who was washing his vehicle and in his lorry, he came up to Sabbanaguppe and alighted from lorry and then boarded the lorry of a Keralite. At about 9.00 p.m., he went to his mother-in- law's house at Mandya and informed his wife about the incident. He also informed his wife that as he came to know that accused No.1 Mantelingaiah will commit his murder, he is informing the same to her and even if he surrenders before the police, nothing will happen to him even with the political influence of accused No.1 (Mantelingaiah). He further informed that as there is danger to his life, he wanted to inform P.W.1 Sampapth Kumar about the murder of his mother - Gangamma. He has also informed to P.W.1 that within 2-3 days, he will go to Ravi Belageri of crime dairy weekly paper and thereafter, he will go to Police Commissioner and surrender before him. Hence, it is mentioned by P.W.1 in his second complaint that as his mother gave the press statement 28 against Mantelingaiah (accused No.1), he thought that his reputation has been affected, and hence, accused No.1 with an intention to commit the murder of Gangamma, instigated all the other persons to abduct and murder Gangamma; consequently the accused took her to the lonely place, committed her murder. They screened the evidence by throwing the dead body of his mother to the flowing water. Hence, he requested to take action against accused No.1 (Mantelingaiah) and his followers whose names are mentioned in Ex.P.4.
5. On the basis of Ex.P.4 (second complaint), FIR was moulded as per Ex.P.54 in Vijayanagar PS crime No.186/2005 for the offences punishable under Sections 143, 148, 365, 302, 201 read with Section 149 of IPC.
6. After completing the investigation, investigating officer filed the charge sheet against accused Nos.1 to 25 29 for the offences punishable under Sections 120-B, 143, 148, 365, 302, 201 read with Section 149 of IPC.
7. To prove its case, the prosecution in all examined 57 witnesses and got marked 129 documents and also got marked M.Os.1 to 27. On the side of the defence, no witnesses were examined nor any documents got marked.
8. After considering the merits of the case, the trial Court convicted accused Nos.3, 4, 6, 8, 9, 12 to 23 for the offences punishable under Sections 120-B, 143, 148, 365, 302, 201 read with Section 149 of IPC. Accused Nos.1 and 25 are convicted for the offences punishable under Sections 120-B, 143, 148, 365, 302, 201 read with Section 109 of IPC.
9. We have heard the arguments of the learned counsel appearing for the respective appellants. 30
10. Sri. C.H. Jadhav, learned Senior Counsel arguing on behalf of appellants accused Nos.1 and 25 in Crl. Appeal No.1042/2011 submitted that after the alleged kidnap/abduction of Gangamma, there is delay of nearly two days in lodging the complaint and registering the case, which is not properly explained by the prosecution; that with regard to the second complaint under Ex.P.4, there is a delay; the role of accused No.25 has come into picture, only under Ex.P.4; both complaints Exs.P.2 and P.4 are suspicious in nature containing the false allegations. It is also his submission that much earlier to Ex.P.4, the police were very much knowing about the incident; that the deposition of P.W.3 shows that police came to the spot in the morning at about 9.00 or 10.00 O'clock and enquired with the witnesses and recorded their statements. Hence, he submitted that the statement of P.W.3 said to have been given before the police ought to have been registered as a complaint, which was first in time. In this connection, he draws the attention, of the Court to the relevant pages 31 of the paper book while referring to the evidence of P.Ws.4, 56 and 53. It is also his submission that even after registering the complaint, there was a delay for submitting FIR to the concerned Magistrate. Hence, he submitted that looking to these materials, the prosecution has suppressed the genesis of the incident and not presented the same as it is before the Court. As per the first complaint, there is no role of accused No.25 and even according to the second complaint also, the only allegation against accused No.25 is that she gave Rs.6,000/- to accused NO.2 and the other accused to go to Dharmasthala and to stay for 4-5 days. Hence, it is his submission that even if such material is taken to be true, at the most, it may amount to harbouring the accused. He made the further submission that with regard to the material facts about the involvement of accused Nos.1 and 25, there are major omissions, which have been proved by the defence. P.W.2 i.e., the approver's character itself is questionable. He is involved in five criminal cases and he 32 had illicit connection with P.W.11 Shobha. Hence, he submitted that in view of these materials on record, the evidence of P.W.2 is not worth believable. P.W.2 is inimical towards accused No.1 and he is the interested witness. He is not an independent witness and his evidence requires corroboration from the independent witnesses. Ex.P.1 complaint by Gangamma earlier to this incident was not against accused No.1, but it was against some members of the AJMS organization. The evidence of prosecution with regard to seizure of some documents while conducting the search of the house is not from the house of accused No.1, but it is from the house of accused No.2. He draws the attention of the Court to the provisions of sections 133 and 114-B of the Evidence Act and made submission that unless and until, the evidence of Approver is fully corroborated with the other independent materials, it is not safe to base the conviction against the accused. Looking to the judgment and order of conviction passed by the trial Court as against the appellants (accused Nos.1 33 and 25), is without reliable and trust worthy materials. Hence, the judgment and order of trial Court is not sustainable in law. He submitted to allow the appeal and to set aside the judgment and order of trial Court by acquitting appellant accused Nos.1 and 25 from the charges.
11. Learned Senior Counsel Sri. Ravi B. Naik appearing on behalf of appellant accused No.19 in Crl. Appeal No.928/2011 submitted that P.W.3 who is said to be the eye witness to the kidnap/abduction of Gangamma has not deposed in her evidence that accused No.19 was also involved in the alleged act. He also made the submission that P.W.1 Sampath Kumar, the son of the deceased Gangamma, has taken the name of accused No.19 by mistake. Referring to the evidence of P.Ws.2 and 6, he made the submission that absolutely, there is no material on record to show the involvement of accused No.19 in committing the alleged offences either 34 abduction or committing the murder of deceased Gangamma. Hence, he submitted to allow the appeal and to set aside the judgment and order of conviction as against appellant accused No.19.
12. Learned counsel Sri. C.R. Gopala Swamy while arguing on behalf of accused No.20 in Crl. Appeal Nio.1037/2011 submitted that P.Ws.3 and 4, who are said to be the eye witnesses to the first incident of kidnapping/abduction, have not at all taken the name of accused No.20. He also submitted that though in Ex.P.2 - the first complaint lodged by Sampath Kumar, the name of accused No.20 is mentioned, but in the evidence of P.W.1 before the Court, he has not at all mentioned about the involvement of accused No.20. Even in the second complaint under Ex.P.4, there is no mention about the name of accused No.20. The learned counsel submitted that, when accused No.12 Shankar has been examined as P.W.2, he deposed about the involvement of accused 35 No.20. But in his statement, given before the Magistrate Court under section 164 of Cr.P.C, there is no mention about the name of accused No.20. So also P.W.6 has not stated before the Court about the involvement of accused No.20. P.W.2 also admitted in his evidence that he has not stated about the involvement of accused No.20 in his statement. In this connection, the learned counsel draws the attention of the Court to page Nos.218 and 219 of the paper books. Hence, he submitted to allow the appeal and to set aside the judgment and order of conviction passed against the appellant accused No.20.
13. Sri. Bharath Kumar, learned counsel appearing for appellant accused No.15-Smt. Devamma in Crl. Appeal No.980/2011 submitted that looking to the evidence of P.Ws.3, 4, 6, and 8, it is clear that, they have not deposed in their evidence about accused No.15 Devamma. He submitted that P.W.2 Shankar, who is the approver, in his evidence, has mentioned the name of one Jayanthi and not 36 accused No.15-Devamma. Accused No.15 was also not identified before the Court. It is his submission that Jayanthi and Devamma are not the one and the same person and the confessionary statement of P.W.2 given before the Magistrate Court under section 164 of Cr.P.C., discloses that the names of Jayanthi and Devamma are mentioned separately, which means that they are the different persons. In Ex.P.2 complaint also, there is no mention about accused No.15-Devamma. Hence, he submitted to allow the appeal and to acquit accused No.15 Devamma.
14. Smt. Mubarak Begum, learned counsel for Sri. Kothwal, learned counsel, argued on behalf of appellant accused No.3 in Crl. Appeal No.1098/2012, accused No.14 in Crl. Appeal No.1099/2012, accused NO.17 in Crl. Appeal No.1100/2012 and accused No.23 in Crl. Appeal No.1101/2012 submitted that these accused persons are implicated in the case only on the basis of hearsay 37 evidence and there is no direct evidence as such. She submitted that in Ex.P.2 complaint, the name of accused Nos.14, 17 and 23 are mentioned and whereas in Ex.P.4 complaint, the name of accused Nos.3, 14 and 17 are mentioned. It is her further contention that the evidence of the alleged eye witnesses is only in respect of the alleged offence of abduction and not in respect of the murder. Drawing the attention of Court to the relevant portions in the paper books, the learned Counsel submitted that P.W.1 has not at all mentioned the names of accused No.3-Nagaraju and accused No.23-Lokesh; that the materials go to show that accused No.15 to 18 were sent back as the petrol in the auto was exhausted. She also submitted that accused No.23 Lokesh was not at all present in the meeting held immediately prior to the alleged incident. She draws the attention of the Court to page No.191 of the paper book and submitted that the names of accused Nos.3, 14, 17 and 23 are not at all mentioned. Even looking to the evidence of P.W.4 at page 38 No.306 of paper book, there is no mention about the name of accused Nos.3, 14 and 23. Hence, she submitted that these four accused persons were wrongly convicted by the trial Court and submitted to allow all the four appeals.
15. Sri. Mali Patil, learned counsel arguing on behalf of appellant (accused No.9) in Crl. Appeal No.1293/2011 submitted that the material in page Nos.190 and 191 of paper book, does not refer to the name of accused No.9. It is submitted that there is no allegation of overt act by accused No.9 in the complaint, FIR and as also in the evidence of prosecution witnesses. Hence, he submitted to allow the appeal.
16. Sri. Nataraj, learned counsel while arguing on behalf of appellant accused No.8 Smt. Bhagya and accused No.16 Sarojamma in Crl. Appeal No.993/2011 made submission that so far as the charge of murder of the deceased Gangamma, there is no reference to the name of 39 accused Nos.8 and 16 by the prosecution witnesses. He submitted that in respect of the alleged offence of abduction, there is a reference of accused No.8 Bhagya; that in the first complaint at Ex.P.2, name of accused Nos.8 and 16 were not at all mentioned but in the subsequent complaint at Ex.P.4, it is mentioned that at the time of abduction of Gangamma, accused No.8 was present. The evidence of P.W2-approver, shows that he has not deposed about the presence of accused No.8. But he has stated that accused No.16 Sarojamma returned back along with the auto rickshaw as its fuel was exhausted. Even P.Ws.4 and 6 have also not deposed in their evidence about the involvement of accused NOs.8 and
16. Hence, he submitted to allow the appeal and to set aside the judgment and order of conviction as against these accused.
17. Sri. Prasanna Kumar P. Daroji, learned counsel while arguing on behalf of appellant accused No.18 in Crl. 40 Appeal No.1092/2014 and accused No.21 in Crl. Appeal No.1201/2001 submitted that in the first complaint at Ex.P.2, accused No.21-H.K. Putta is shown as accused No.9. But his name is not shown in the second complaint. It is also his submission that looking to the date of recording the statement of P.W.6 by the police, there is delay of 10 days and hence, her evidence cannot be relied upon by the Court. The learned counsel submitted that perusal of the evidence of P.W.3 Rathnamma, makes it clear that even P.W.6-Rukmini was also present when the police came to the spot. But, even then her statement was not recorded by the police at that time. As against accused No.21-H.K. Putta, there is no evidence on the side of prosecution about his involvement in the case. As regards accused No.18-Sridhar, he was only the auto driver and was not involved in the incident at all and he is totally unconnected with the offence of abduction so also the alleged murder. Hence, he submitted to allow the above said two appeals.41
18. Sri. Manjappa, learned counsel arguing on behalf of the appellant accused No.13 Sri. Gangothri Mahadeva in Crl. Appeal No.1066/2011 submitted that as per the case of the prosecution, it is stated that accused No.13 went to accused NO.1 Manteligaiah and spoke to him and came back. But in the evidence of P.W.2 Shankar, at page No.192 of paper book, there is no mention and even at page No.196 also, the name of accused No.13 is not at all mentioned. It is also his submission that the evidence of P.W.3 Rathnamma and P.W.4 Geetha, is contradictory, about the presence of accused No.13; and P.Ws.1 and 2, have not deposed anything about the presence of accused No.13. Hence, he prayed to allow the appeal and set aside the judgment and order of conviction as against this accused.
19. Smt. Sheela Anish, learned counsel while arguing on behalf of the appellant accused No.22-Madhu @ 42 Madhubala in Crl. Appeal No.1053/2011 submitted that the name of accused No.22 is mentioned in Ex.P.2-the first complaint. But page No.223 of the paper book, reveals omission about the presence of accused No.22. P.Ws.3 and 6 have not deposed about the involvement of accused No.22. The learned counsel further submitted that accused No.22 is not the part of the AJMS organization and there is no motive for accused No.22 for committing such offences. There is no other material or evidence as against accused No.22. She is now attacked with paralysis and has totally become invalid. The materials placed on record by the prosecution will not prove the involvement of accused No.22. Hence, she submitted to allow the appeal and to set aside the judgment and order of conviction against this accused.
20. Per contra, Sri. Keshava Murthy, learned SPP-II for the respondent State in all the above mentioned appeals, submitted that Ex.P.1 - the complaint filed by 43 deceased Gangamma, speaks about the illegal activities of the AJMS Organisation and the involvement of accused No.1-Mantelingaiah and his followers, who were the members of the said organization in committing illegalities. He further submitted that accused No.1 was insisting Gangamma to withdraw the complaint filed by her as per Ex.P.1. Accused No.1 with the help of fellow accused in the case, was insisting the persons in the area to attend the meetings of AJMS Organisation compulsorily and he was collecting the amount (haphta) stating that he has to pay it to the Government to get the order of regularization of the houses in the names of all those members who have occupied the houses constructed by Urban Development Authority. If anybody was not attending to the meeting and not paying the amount, he used to call them to the organization and used to harass them. He submitted that because of such illegal activities of accused No.1, the deceased Gangamma gave the publication in Kannada Prabha, a Kannada daily news paper highlighting illegal 44 activities and accused No.1 took it seriously as it affected his reputation and instructed his fellow accused to go and bring Gangamma to his house. That was the motive for the accused for committing the offence. The learned SPP further submitted that accused No.1 conspired with the other accused persons for committing the offence of abduction so also the murder of Gangamma. The evidence of P.W.8 clearly goes to show about the conspiracy. In this connection, he draws the attention of the Court to page Nos.342 and 344 of the paper books. It is also his submission that the evidence of P.W.3 Rathnamma, P.W.4 Geetha and P.W.6 Rukmini, who were the eye witnesses to the incident of abduction, is consistent and truthful. Their versions show that on 17.11.2005 during night at 9.00 O'clock, the accused persons named in the complaints Exs.P.2 and P.4 came to the house of Gangamma when she was alone in the house, she was dragged from the house holding her tuft and was forcibly pushed her into the autorickshaw; that the Tata Sumo vehicle was standing at 45 some distance and Gangamma though she was crying for help, was taken away by the accused persons; that after talking to accused No.1, other accused persons again proceeded in the auto rickshaw and the Tato Sumo vehicle along with the deceased Gangamma to the place of offence. They stopped their vehicles at the said place and had the drinks and meals and accused No.2 along with the other accused persons assaulted Gangamma with the iron rod. The other accused persons kicked her with their legs and some of the accused persons were asked to hold her. Then accused No.3 Nagaraju @ Kencha drove the vehicle on Gangamma and thereafter, accused No.2 Siddu also drove the vehicle over Gangamma and thereby, they caused her death and then thrown the dead body in flowing water at Kabini reservoir. He further submitted that accused No.12 Shankar, who had also involved in committing the offence from the stage of holding the meeting with accused No.1, was present all along i.e., at the time of abduction and taking away Gangamma to the 46 lonely place, at the time of committing her murder, and even after committing her murder, he accompanied the other accused persons to Dharamasthala as directed by accused No.1 and 25 and stayed at Dharmasthala. Then suspecting that he also will be murdered at the hands of the other accused persons, accused No.12 - Shankar escaped and called complainant Sampath Kumar and narrated as to what had happened. The learned SPP further submitted that the materials go to show that from Dharmasthala, accused No.12, came to his mother in law's house at the first instance and made extra judicial confession before his wife about the incident and thereafter, he narrated the incident before P.W.1. Accused No.12, Shankar was pardoned by the Magistrate as he came forward to make full disclosure of the incident that has taken place and gave his confessionary statement before learned Magistrate as per Ex.P.10. In this regard, learned SPP submitted that the learned Magistrate has also been examined as P.W.38. By perusing Ex.P.10-the 47 confessionary statement so also the oral evidence of P.W.38, it is clear that all the procedural aspects as contemplated under section 164 of the Cr.P.C have been complied with and it also goes to show that the confessionary statement made so also the evidence of P.W.2- the approver (accused No.12-Shankar) before the Court clearly proves that it is a voluntary and truthful statement made before the Court. Hence, the said statement Ex.P.10 so also the oral evidence of P.W.2 and P.W.38 has been rightly relied upon by the trial Court. It is also his submission that the documents collected from the petrol bunk as per Exs.P.16 and 17 and the evidence of P.W.10, show that the vehicle proceeded in the direction of the scene of offence at that relevant point of time. The evidence of P.Ws.21 and 22 and the delivery notes at Exs.P.33 and P.34 so also the oral evidence of P.W.23 show that the Tata Sumo Vehicle belonged to accused No.1 at the relevant point of time. It is also his submission that the wife of P.W.2 Shankar, before whom the extra judicial 48 confession was made, has also been examined before the Court as P.W.44 and her evidence also goes to show that P.W.2 made such confessionary statement before her and narrated about the incident. That the documents Exs.P.5, P.6, P.21 are also the important documents. As per the voluntary statement of P.W.2 Shankar, the spot mahazars of the place where Gangamma was assaulted and also the place where the dead body of Gangamma was thrown were drawn and M.Os.1 to 4 and 6 to 9 were seized. P.Ws.16 and 17 are the witnesses to the said mahazars and they have fully supported the case of prosecution. He also submitted that the blood stained shirt of accused NO.9 Shiva Shetty was seized under the mahazar Ex.P.22; P.W.26 deposed supporting the same. So also the blood stained saree of accused No.7 Saraswathi was seized under the mahazar Ex.P.24 and the oral evidence of P.W.29 supports the said mahazar. The blood stained shirt of accused No.3 Nagaraj was seized under Ex.P.26 mahazar and the evidence of P.W.28 supports the same. At the 49 instance of accused NO.2 Siddu, the iron rod M.O.20 was also seized. The learned SPP further made the submission, that the oral evidence of P.Ws.47, 50 and 55 - the scientific officers goes to show that the blood stained clothes of accused Nos.9, 5 and 3 so also the iron rod M.O.20 are having the blood stains and they are the human blood stains. P.W.25 Ningamma identified the dead body of Gangamma and inquest was also conducted in the presence of P.Ws.16 and 17. The post mortem report Ex.P.52 goes to show that there were external injuries over the dead body of the deceased. Hence, he submitted that these materials clearly prove the involvement of the accused persons who have been already convicted by the trial Court. There is no illegality committed by the trial Court. Hence, submitted to dismiss all the appeals.
21. In reply, the learned senior counsel Sri. Jadhav submitted that while recording the confessionary statement of P.W.2 Shankar, the learned Magistrate had administered 50 oath to P.W.2 Shankar which is contrary to the provisions of Section 164 of Cr.P.C. and hence, Ex.P.10 - the confessionary statement of P.W.2 cannot be looked into and this legal aspect has been ignored by the trial Court. It is also his submission that even looking to EX.P.10, there is no mention that before recording the said statement, the learned Magistrate has taken all the precautionary measures to keep away the police from the Court premises. Hence, he submitted that if Ex.P.10 confessionary statement is excluded from consideration, then there is nothing on record to connect the accused with the alleged offences.
22. The learned SPP with the permission of the Court made the submission that even if oath is administered to P.W.2 while recording his statement, it cannot be an illegality and it is only an irregularity in following the procedure and it is saved as per sections 460 and 463 of Cr.P.C. Hence, he has submitted that the trial Court has 51 rightly taken into consideration the confessionary statement of P.W.2 while disposing of the matter.
23. We have perused the oral and documentary evidence placed by the prosecution, considered the grounds urged in the appeal memorandum in the respective appeals, perused the judgment and order of conviction and sentence imposed by the trial Court against the appellants-accused, so also, perused the decisions relied upon by learned counsel appearing for the appellants and the learned SPP-2, which are referred above.
24. The complaint Ex.P2 (initially filed) was filed by Sampath Kumar, son of deceased Gangamma. He is not an eyewitness to the first incident of abduction of Gangamma and the next incident of her murder. Subsequently, some more information is given as per Ex.P.4 (herein after called as second complaint). The second complaint Ex.P4 narrates in detail the information furnished by accused No.12 52 (Shankar) to the complainant Sampath Kumar. The confessional statement of accused No.12 is recorded under Section 164 of CR.P.C, which is vital in this case. Therefore, it is necessary to consider the confessionary statement of accused No.12 (Shankar) who was subsequently examined as P.W.2 before the Court.
25. On 24.11.2005 the Police inspector of Vijayanagar police station, Mysore made the requisition to the JMFC-I Court, Mysore requesting to pass an order for recording the confessionary statement of accused no.12 Shankar and on the same day, permission was granted by the said JMFC Court.
26. Ex.P10 is the confessionary statement recorded by the JMFC-II Court, Mysuru. It was recorded in parts on 28.11.2005 and again on 30.11.2005 and completed on 1.12.2005. In this connection, we have also carefully perused the oral evidence of P.W.38-learned Magistrate 53 (Sri. Ganapathi Badami) who recorded confessionary statement of accused No.12 (Shankar) as per Ex.P10 during the course of trial. Looking to Ex.P10 so also the oral evidence of P.W.38, it is clear that, before recording the confessionary statement of accused No.12 (Shankar), the learned Magistrate (P.W.38) has taken all the precautionary measures and at that point of time, accused No.12 was in judicial custody. Materials show that the learned Magistrate issued the body warrant directing the prison authorities to produce accused No.12 (Shankar) before him.
27. In the evidence, the learned Magistrate (P.W.38) has deposed that he was working as JMFC II Court, Mysuru at the relevant point of time. On 25.11.2005, the I Additional Civil Judge, (Sr. Dn.) Mysuru directed him to record the confessionary statement of accused No.12 (Shankar) as accused No.12 (Shankar) was ready to give confessionary statement in connection with the case 54 registered in Vijayanagar Police Station Crime No.186/2005. The investigating officer of Vijayanagar police station also appeared and submitted that accused Shankar was ready to give his confessionary statement and made a request to record the same. As accused No.12 was in Central Prison at Mysuru, he issued the body warrant to the prison authorities. The prison authorities were informed to produce him on 26.11.2005 before the Court. Accordingly, accused No.12 (Shankar) was produced before the Court under the body warrant, by the Central Prison Authorities. After the production of accused No.12 before him, when he enquired name and address of accused No.12, the name mentioned in the remand application and the name told by accused No.12 were tallying with each other. Learned Magistrate has further deposed that he told accused No.12, who was present before the Court, not to have any sort of fear from any body for giving the confessionary statement. He has taken care to see that no police officers were present in the Court 55 premises. Even he has sent out the police officers of Central Prison from the Court premises. As per Rule 5 of the Karnataka Criminal Rules of Practice, he asked six questions, which were answered by accused No.12. When he was specifically asked as to whether there is any pressure from anybody or from the police to give such confessionary statement, for that, accused No.12 (Shankar) answered that he is giving such a statement voluntarily and there is no pressure either from the police or from anybody. He has further deposed that it was also informed to accused No.12 that in case if he gives such voluntary statement, it will be used as evidence against him. For that also, accused No.12 (Shankar) consented. The questions were asked to accused No.12 in the language known to him and the answers given were also recorded in the very words of accused No.12. Then, he posted the matter on 28.11.2005 for recording the confessionary statement of the accused. On 28.11.2005, accused No.12 was produced under the body warrant and 56 every steps were taken to see that no police staff were present in the Court premises and after getting confirmation that no such police officers were present in the Court premises, again he informed accused No.12 that he is not bound to give such a statement and in case, if he gives such statement, the same will be used as evidence against him. For that also, accused No.12 made it clear that he was giving the statement voluntarily without any fear. After getting confirmation that accused No.12 was giving the statement voluntarily, he recorded the confessionary statement in the question and answer form in the words of accused No.12. Then, it was read over to accused No.12 and he admitted the correctness of the same. Then he sought two days time to give additional confessionary statement and as per his request, two days time was given to him after mentioning the same at the end of the confessionary statement itself. Accused No.12 was remanded to judicial custody till 30.11.2005 and it was informed that during such period, no police officer shall 57 contact accused No.12. The learned Magistrate has further deposed that on 30.11.2005, accused No.12 was brought under the body warrant and produced before the Court and again, steps were taken to see that no police officers shall present in the Court premises and even the police attached to the prison, who brought the accused, were sent out of the Court hall. After getting confirmation that there is no obstacle for accused No.12 to give the statement, again accused No.12 was informed that he is not bound to give such statement and if he gives the statement, it will be used as evidence against him. Accused No.12 told that he is giving the statement voluntarily and without any fear and then, he recorded the additional statement in the question and answer form. Then it was read over to him for which accused No.12 admitted that it is correct. The confessionary statement dictated to the typist was typed and at the end of the said statement, the memorandum as required under Section 164 of Cr.P.C. was also dictated to the typist and accordingly, it was typed by the typist. As 58 the Court's time was over, recording of the remaining confessionary statement was adjourned. P.W.38 also informed the prison authorities that without the prior permission of the Court, no police officers shall contact accused No.12 and he was remanded to judicial custody till 1.12.2005. On 1.12.2005, again accused No.12 was produced under the body warrant and even at that time also, he has taken care to keep the police officers away from the Court premises including the prison police. Again, he gave the instruction to accused No.12 that he is not bound to give the confessionary statement and if it is given, the same would be used as evidence against him. As accused No.12 informed that he is giving the same voluntarily and without any fear, he recorded the confessionary statement on that day in the question and answer form. Thereafter, it was read over to accused No.12. Before recording the confessionary statement, oath was administered to the accused. After reading the contents of the confessionary statement, the accused 59 admitted the statement as true and he obtained the signature of accused No.12 to the confessionary statement in his presence and he also took the memorandum at the end of the statement and remanded accused No.12 to the judicial custody till 3.12.2005 informing the prison authorities to produce him before the I Additional Civil Judge (Sr. Dn.) and CJM, Mysuru. After recording the confessionary statement of accused No.12, the requisition requesting to record the confessionary statement, the order sheet, confessionary statement and the order of I Additional Civil Judge (Sr. Dn.) and CJM, Mysuru were put into one cover and it was sealed and the same was submitted to I Additional Civil Judge, Mysuru. P.W.38 has also deposed that each page of the confessionary statement (Ex.P.10) bears the signature of himself and accused No.12. His signature on page No.35 is as per P.10(b). The letter addressed by the I Additional Civil Judge to himself is at Ex.P.57. The contents of 60 confessionary statement was also mentioned in detail in the order sheet and it is at Ex.P.58.
In the cross examination, P.W.38 has denied the suggestion that if oath is administered to the accused while recording his confessionary statement, it amounts to violating the relevant provisions of law. He has not mentioned specifically that on 28.11.2005 from which time up to which time, he had recorded the statement under Ex.P.10. He has recorded the confessionary statement in his chambers by closing the doors of the chambers. On 28.11.2005 as accused sought time that he has to introspect himself, he granted time. He denied the further suggestion that accused No.12 gave the statement Ex.P.10 because of the pressure and not voluntary. This itself goes to show that that accused No.12 Shankar was brought to the Court from the prison premises by the prison authorities and was not brought along with the investigating officer. The document Ex.P10 as well as the oral evidence of P.W.38, which is referred above in detail, 61 shows that when accused No.12 was brought before the learned Magistrate, before recording his confessionary statement, the learned Magistrate has given statutory warning that he is not bound to make any such confessionary statement admitting the guilt and it is also not necessary for him to make such confessionary statement and if he makes any such statement, same would be relied upon by the Court to convict him. He was also asked by the learned magistrate as to whether he is making such statement voluntarily or due to pressure from somebody. In spite of giving such statutory warning and also asking him whether he is making confessionary statement voluntarily, accused No.12 Shankar still made it clear to the learned Magistrate that he is making the statement voluntarily and without anybody's pressure on him and he wanted to tell the truth before the Court about the incident. After taking all these precautionary measures, the learned Magistrate has recorded his statement. As the statement was not completed at one 62 sitting, accused was secured from the prison through the prison authorities on two more occasions.
28. Perusing the confessionary statement dated 28.11.2005 on page No.2, it is mentioned by the learned Magistrate in bracket that "at this stage accused submitted that he wanted to give some more confessionary statement and for that he has to introspect himself, hence, accused has sought one more adjournment and as per his request, the recording of the confessionary statement was adjourned". Ex.P-10 further shows that again he was called on 30.11.2005, "on 30.11.2005 further confessionary statement was recorded by the learned Magistrate and as the Court's time was over, the matter was again adjourned to 1.12.2005 to record the remaining confessionary statement". Every time, when accused No.12-Shankar was produced before the learned Magistrate, the learned Magistrate has followed the same procedure and he put the certificate that before recording 63 the statement he has explained to accused No.12 that he is not supposed/bound to give such statement and in case, if he gave such statements, same will be used as evidence against him.
29. It is also specifically mentioned in the evidence of P.W.38 that before recording the statement he sent all the Police personnel outside and only the accused, the learned Magistrate and the typist were present in the open Court. Even perusing the cross-examination of P.W.38, nothing has been elicited from his mouth so as to disbelieve his version that accused No.12 (Shankar) gave such statement before him voluntarily and without the pressure of anybody. However, the learned counsel appearing on behalf of the appellants and more particularly learned counsel appearing for accused Nos.1 and 25 submitted that the learned Magistrate administered oath to accused No.12 Shankar while recording his statement under Ex.P10, which is against the provisions of Section 64 164 of Cr.P.C. and it cannot be looked into. In this regard, he relied upon the Division Bench decision of this Court in case of PHILIPS VS. STATE OF KARNATAKA reported in 1980 CRL.L.J. 171. we have perused the decision relied upon by learned senior counsel Sri.C.H.Jadhav in this regard, so also, we have perused Sections 460 and 463 of Cr.P.C. We have also perused decision reported in AIR 2007 SC 420 in the case of BAHUBHAI UDESINH PARMAR Vs. STATE OF GUJARAT wherein at paragraph No.10 their lordships of Hon'ble Supreme Court have observed as under:
"10. We do not appreciate as to why oath had to be administered to the accused while recording confession. Taking of a statement of an accused on oath is prohibited. It may or may not be of much significance. But, it may assume significance when we examine that a purported deposition of accused was taken on 10.3.2003 wherein also his evidence on oath was recorded in the following terms."
(Emphasis supplied) 65
30. Clause 3 of Article 20 of the Constitution of India provides that no person would be compelled to be a witness against himself. As held in STATE OF BOMBAY VS. KATHIKALU (1961 CRL.L.J. 856), the compulsion contemplated by this clause means duress which in the context means physical objective act and not in state of mind of the person making the statement. Unless duress is exercised against an accused, we are of the opinion that he cannot be held to have been compelled to be a witness against himself. If that be so, we doubt if the mere administration of oath to an accused by a Magistrate while recording his statement under Section 164 of Cr.P.C. can fall within the purview of compulsion as contemplated by Clause (3) of Article 20 of the Constitution and amounts to a compelled testimony.
31. In the case on hand, the Court below has not only relied upon the statement given by accused No.12 66 (Shankar) i.e., relied upon by the trial Court but relied upon the other materials. The records reveal that immediately after the incident, accused No.12 made extra judicial confession before his wife (P.W.44) who has also been examined before the trial Court and deposed about the extra judicial confession made by her husband; another extra judicial confession of P.W.2 (accused NO.12- Shankar) before P.W.1 (Sampath Kumar) as narrated in Ex.P.4 complaint; and the oral evidence of P.W.2 (Shankar) before the trial Court after granting him pardon. These are the important materials in this case. Therefore, in view of all these materials coupled with oral evidence of P.Ws.3, 4, 6 and 8 and in view of the observation of the Hon'ble Supreme Court at para No.10 of its judgment reported in AIR 2007 SC 420 we are of the opinion that administering oath to accused NO.12 Shankar before recording his confessional statement is not of much significance. So also, referring to Sections 460 and 463 of Cr.P.C., it may be said that administering oath may be 67 mere irregularity under the facts and circumstances of the case and not illegality. Only on the basis that oath was administered to accused No.12 Shankar while recording statement under Ex.P.10, the entire statement cannot be rejected when it is supported by other independent materials, both oral and documentary.
32. It is important to note that when the case was committed to the Court of Sessions by the learned Magistrate and when the case was pending before the Sessions Court at Mysuru, accused No.12 (Shankar) addressed letter to the Court on 18.06.2008 requesting to treat him as approver and the Trial Court treated the said letter as an application of accused No.12. On 14.7.2008 the Investigating Officer also filed requisition to treat accused No.12 as approver. Though the matter was posted for filing objections, if any, by the other accused persons, no objections were filed by any of the accused. After hearing both sides, the learned Sessions Judge has allowed 68 the application by order dated 6.8.2008 and treated accused No.12 as an approver by granting pardon.
33. During the course of hearing of these appeals, the learned counsel appearing for the respective accused have not at all challenged the validity/correctness of the order dated 6.8.2008 passed by the learned Sessions Judge granting pardon to accused No.12 Shankar and treating him as an approver in the case. Therefore, the pardon granted by the concerned District and Sessions Court has become final allowing accused No.12 Shankar to give evidence and accordingly, he has been examined as P.W.2 by the prosecution. So far as Ex.P.10 (confessionary statement) given by P.W.2 (Shankar) is concerned, the defence has not at all seriously challenged the same in the course of cross examination. Their only contention is that the learned Magistrate has administered oath to P.W.2 while recording the confessionary statement and hence, it cannot be relied upon. Except this, they have not at all 69 challenged the validity or correctness of Ex.P.10 confessionary statement. About administering oath to P.W.2 (Shankar) is concerned, we have already discussed above and made it clear that in the facts and circumstances of the case and the decision of the Hon'ble Supreme Court, it is merely an irregularity and not an illegality. Ex.P.10 is supported by the other independent material on in the case.
34. Before coming to the evidence of P.W.2 Shankar, the approver of this case, it is relevant to note Section 133 of the Evidence Act, which reads as under:
133. Accomplice.-An accomplice shall be a competent witness against an accused person;
and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
35. We have also perused Section 114(b) of the Evidence Act regarding the presumption which reads as under:
70
114. ......
The Court may presume-
(a).........
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars.
36. Learned counsel appearing for the appellants- accused Nos.1 and 25 has also relied upon the decision of the Hon'ble Supreme Court in case of SHESHANNA BHUMANNA YADAV VS. STATE OF MAHARASTRA reported in 1970(2) SCC 122 wherein Their Lordships have laid down the proposition as under:
"Held, that the law with regard to appreciation of approver's evidence is based on the effect of Sections 133 and 114(b) of the Evidence Act namely that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. The primary meaning of accomplice is any party to the crime charged and someone who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of 71 second witness or of circumstances like the conduct of the person against whom it is required. Corroboration must connect or tend to connect the accused with the crime. When it is said that the corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece or evidence tends to confirm the truth as a part of the testimony to be corroborated. That evidence must confirm that part of the testimony which suggests that the crime was committed by the accused. The first test of reliability of approver and accomplice evidence was for the Court to be satisfied that there was nothing inherently impossible in evidence. After that conclusion is reached as to reliability, corroboration is required. The rule as to corroboration is based on the reasoning that there must be sufficient corroborative evidence in material particulars to connect the accused with the crime."
(Emphasis supplied)
37. We have also perused the decisions relied upon by the learned counsel for the appellant-accused filed 72 along with the memo of citations dated 31.07.2015 which decisions are as under:
i. (1975) 3 SCC 742 in the case of Ravinder Singh Vs. State of Harayana.
ii. (2014) 7 SCC 716 in the case of Adambhai Sulemanbhai Ajmeri and others Vs. State of Gujarat.
iii. (2013) 15 SCC 222 in the case of Central
Bureau of Investigation Vs. Ashok Kumar
Aggarwal and another
The dictum laid down in the case of Sheshanna, mentioned supra is periodically reiterated in aforementioned judgments.
38. In view of the of the legal position as clarified by the Hon'ble Supreme Court mentioned Supra, we have examined the material to know as to whether the evidence of P.W.2 (approver) has been corroborated with the independent evidence of the other witnesses so also the documents produced in the case. In his examination in 73 chief, P.W.2 has spoken about the AJMS organization and accused No.1 (Mantelingaiah) being the President of the said organization. He has also deposed that deceased Gangamma and all the other accused persons are the members of the organization; every 15 days, there used to be meetings of the said organization in the Chamundi guest house at Mysuru; accused No.1 used to address the meeting and if any person in the meeting informed that he is not having the residential house, in order to get the house for his residence, the organization used to collect Rs.3,000/- to Rs.10,000/- depending upon the capacity of the said person and the houses belonging to the MUDA which were constructed around Mysuru City used to be shown to such persons and used to direct such members to reside in the said houses. Such persons were also informed that every month, they have to pay Rs.300/- by way of installments to accused No.1. P.W.2 has also deposed that he had paid Rs.5,000/- to accused No.1 stating that he is in need of a residential house and after 74 getting the said amount, accused No.1 sent accused Nos.14 and 17 to show the house at Hebbal; Accused Nos.14 and 17 also told P.W.2 that if he wanted to get good house, he has to pay the amount to them also. He has also deposed that he had paid Rs.3,000/- to accused Nos.14 and 17 and thereafter, accused Nos.14 and 17 showed him the house bearing No.LIG-2 NO.717 in Lakshmikanth nagar, Hebbal, Mysore and he started to stay in the said house. Every month, he used to pay Rs.300/- to accused Nos.14 and 17 by way of installments. For the payment of the amount, neither accused No.1 nor accused Nos.14 and 17 used to issue any receipts.
39. P.W.3 Rathnamma, P.W.4 Geetha, P.W.6 Rukmini and P.W.8 Vijaykumar have also spoken about the said AJMS organization and accused No.1 being the President of the said organization. We have perused the documents produced in the case. Exs.P.37 to P.41 and Exs.P.42 to P.46 and P.47 to P.51, coupled with the oral 75 evidence of P.Ws.2, 3, 4, 6 and 8 clearly show that there was such an organization called as AJMS Organization at Mysuru wherein accused NO.1 was the President of the said organization and he used to collect the money from the persons who were in need of the residential houses. He used to allot houses to the members of AJMS Organisation illegally, though the houses were constructed by Mysore Urban Development Authority which means Accused No.1 and others misusing the houses constructed by statutory authority, by cheating the members of AJMS Organisation, in a highhanded manner.
40. In the evidence of PW-2, it has also come that the deceased Gangamma was telling that she has already paid a sum of Rs.50,000/- towards the monthly installment and she is not able to pay the money further and hence, she protested in the meeting in that regard. Because of her protest, accused No.1 sent her back from the meeting. P.W.2 has also deposed that thereafter, he came to know 76 that accused No.1 sent some persons to the house of Gangamma to ask her to vacate the house; the people on the side of accused No.1 who went to the house of Gangamma made galata; Gangamma lodged complaint before the Vijayanagar Police, Mysore.
41. We have perused the complaint (Ex.P-1) wherein the signature of Gangamma is marked as per Ex.P-1(a). In the said complaint, the deceased Gangamma has narrated about the collection of amount from AJMS and when she protested, the people, who are the followers of accused No.1-Mantelingaiah, came to her house and made the galata asking her to pay the amount of Rs.15,000/- or else, to vacate the said house. They told that she should not give any complaint before the police and even if she gives the complaint, she cannot do anything because the police are with them and a share in the amount collected will also go to the police. P.W.2 has deposed that, on the same day, a meeting was held in AJMS office at 8.00 p.m. 77 and the members of the said organization brought to the notice of accused No.1 about Gangamma lodging the complaint before the police and it was decided to insist Gangamma to withdraw the said complaint. After coming to know about the decision taken in the meeting, 2-3 days earlier to her death, Gangamma called the press-meet along with Govindraju, Srinivas and Vijendra and gave the press statement against accused No.1, which was published in the Kannada Prabha Kannada daily newspaper. On 15th or 16th November 2005 i.e., after Gangamma's press statement was published in the newspaper, accused No.1 also called the press meet. After the said press meet, accused Nos.2, 3, 14 and 17 called P.W.2 - Shankar stating that they have to go to Mandya in Tata-Sumo, however, after five minutes they sent P.W.2 back.
On 17.11.2005 at 10.00 or 11.00 a.m. accused Nos.2, 3, 4, 14, 17, 20 and 24 were telling the people that the meeting would be called at 4.00 p.m. on that day at 78 Kesare central office and they invited members to attend the meeting; P.W.2 was also invited. Accordingly, meeting was held at 4.00 p.m. Except accused Nos.19, 21 and 23, all the other accused persons participated in the said meeting. Accused No.25 told in the said meeting that, in respect of the said publication in the newspaper of Gangamma; people from different places were asking about the same as to whether the accused will take action against Gangamma or they themselves have to take action against her. Accused No.25 was also telling that action that would be taken against Gangamma will be a lesson to others also. Even though they all came down after the meeting, accused Nos.2, 3, 4, 14, 17 and 24 again went inside the office room and secretly talked to accused Nos.1 and 25, and then came back. Thereafter, they went back to Hebbal; in the Hebbal Office, they held the meeting. Accused Nos.2, 3, 14 and 17 discussed in the said meeting that they will take Gangamma to the house of accused No.1. P.W.2 has also deposed that then they went to the 79 house of Gangamma by walk as it was of a short distance. The other accused also came along with one autorickshaw and Tata-Sumo vehicle to the house of Gangamma. It was about 9.00 p.m. There was street light in front of the house of Gangamma. Accused Nos.4, 20 and 24 went inside the house of Gangamma and dragged her outside by holding her hair, then all others assaulted Gangamma and pushed her into the autorickshaw. At that time, accused Nos.2 and 3 were telling in a loud voice that if anybody speaks against accused No.1, same thing will happen to them also. Because of the fear of accused No.1 and other accused, the people, who came in front of the house of Gangamma, did not come to her rescue. Then they brought Gangamma in the autorickshaw nearby Radial factory at Mysuru Ring Road and shifted her into the Tata- Sumo vehicle; accused No.2-Sidda was driving the said Tata-Sumo vehicle. In the Tata-Sumo vehicle P.W.2, accused Nos.11, 17, 14, 24, 4, 20 and 10 were present. Other accused were in the autorickshaw following the Tata- 80 Sumo. Then, they came nearby the house of accused No.1 at Kesare. At that time Gangamma was crying loudly and to prevent her so crying and as the accused wanted her voice should not be heard by anybody, they increased the volume of the tape-recorder fixed in the Tata-Sumo vehicle. Then accused Nos.2, 3, 14 and 17 and two others i.e., totally 5 to 6 persons went to the house of accused No.1, talked to him and came back and they proceeded and stopped the vehicle nearby the Hotel at Hunsur Road, Inakal. Accused Nos.2 and 3 brought the meals and drinks parcel and then, proceeded on the H.D.Kote Road. Thinking that the diesel in the Tata-Sumo was not sufficient, they took the vehicle towards Ramakrishna Nagar Petroleum Bunk.
P.W.2 has further deposed that, at that time, accused No.18-Sridhar, the driver of the autorickshaw was telling that the gas in the autorickshaw, was exhausted and if he was already informed that he has to cover that much of distance, he would not have brought his autorickshaw and 81 he told the accused that it is not possible for him to follow them further and insisted to give his hire charges so that he will go back. Later, accused No.15-Jayanthi, and certain other accused went back in the autorickshaw of accused No.18.
Other accused including P.W.2 got the diesel to the Tata-Sumo vehicle in the petrol bunk and proceeded to H.D.Kote road. Thereafter, Tata-Sumo vehicle was stopped nearby the tamarind tree and accused Nos.2 and 3 asked other accused to alight from the vehicle. Accordingly, they alighted and accused No.2 asked Gangamma to alight from the vehicle and he assaulted her with the iron rod twice. Then, he caught hold her hair and dragged her to the ground from the vehicle. At that time, Gangamma was requesting not to assault her as she had not done any thing wrong. Even then, accused No.2 assaulted on her back with the iron rod and abused her in filthy language. At that time, P.W.2 and certain other accused told accused No.2-Sidda not to ill-treat her and they can take her to 82 accused No.1 and leave her there. Then, accused No.2 asked P.W.2 and certain other accused that they have also colluded with her, hence, they kept mum. Thereafter, they had the lunch. Accused Nos.2, 3, 4 and 17 consumed the liquor. P.W.2 did not accept the meals and he threw it into the canal. Then, accused No.2 assaulted Gangamma on the left side of her head with U.B.liquor bottle and there was a bleeding injury on the head, she fell down. Again she was held by other accused and made her to stand. Then accused No.2 asked Gangamma whether P.W.2 and accused No.11 are giving information to her about the activities of the AJMS organization; however Gangamma told Accused No.2 that neither P.W.2 nor accused No.12 (Shankar) gave any information to her. Then, accused No.2 told to all other accused that who ever intend to assault or kick Gangamma, can do so and told that if anybody raises his voice against accused No.1- (Mantenlingaiah), the same thing will happen to him/her also. Accused No.2 asked accused No.4 to kick Gangamma 83 and accordingly, accused No.4 kicked on the private part of Gangamma and Gangamma fell down crying on the ground; accused Nos.2 and 3 made all other accused to sit in the Tata-Sumo vehicle and told accused Nos.4, 22, 24 and 20 to hold Gangamma tightly and accordingly, they held Gangamma tightly; accused No.3 drove the Tata- Sumo vehicle over Gangamma, so as to misdirect the Police for treating the crime as an accident case. However, Gangamma was in between the two wheels of Tata-Sumo vehicle. Hence, accused No.2 boarded the Tata-Sumo vehicle, and made accused No.3 to alight stating that it is not possible for him to commit the crime. A-2 himself boarded the Tata-Sumo vehicle and drove it over Gangamma for 2-3 times and later he verified as to whether Gangamma was still alive or dead. Then, accused No.2, 3, 4, 10, 14, 17, 22 and 24 applied the blood from the dead body of Gangamma to their foreheads and 3-4 persons lifted the body of Gangamma and put into the Tata-Sumo vehicle. Thereafter, as told by accused No.2, 84 himself and other accused put the mud on the place where there were blood stains. Then, they took the Tata-Sumo vehicle in the same road i.e., Vaddara Palya or Vodeyara Palya towards H.D.Kote. It was a lonely place. Then they took the vehicle towards right side and proceeded 2-3 kilometers away, where there was a bridge. Accused Nos.2 and 3 alighted from the vehicle and told other accused to throw the dead body of Gangamma in the water. It was Kabini river bridge. 3-4 accused together had thrown the dead body of Gangamma into the river water. They saw the body of Gangamma floating in the flowing river in the head lights of vehicle, P.W.2 further deposed that, then, they halted at some place as it was night and early morning at about 4.30 or 5.00 O'clock, they reached the house of accused No.1. The vehicle was blood stained when it came to the house of accused No.1. Accused Nos.2, 3, 4, 24, 22, 17, 14 and Jayarama-accused No.20 alighted from the vehicle and went inside the house of accused No.1. Accused Nos.1 and 25 came and asked the 85 accused as to whether they have completed the work properly and they said "Yes". Accused No.1 also asked as to whether they have thrown her dead body into the water, for that also they said 'Yes'. Accused No.25 told the other accused that before throwing the dead body into the water, they could have put it into the bag, tied it with the rope and they could have made it to sink in the river water. Then, accused No.25 told them not to stay in their place and asked them to go out for some days and that accused No.1 will look after everything. She gave a sum of Rs.6,000/- or Rs.8,000/- into the hands of accused Nos.2 and 3 and again paid Rs.2,000/- and asked them to go to Dharmastala. Thinking that the space in the Tata-Sumo vehicle is not sufficient, they left some of the accused persons there only and only 11 people i.e., PW-2, accused Nos.2, 3, 4, 5, 7, 9, 10, 11, 14 and 22 went to Dharmastala. While going, in a lake at Holenarasipura, they washed the Tata-Sumo vehicle as there were blood stains. They reached Dharmastala at 7.00 p.m. and they 86 stayed in Vyshali guest house at Dharmastala, in room Nos.251 and 253 i.e., one room for the women accused and another room for the male accused.
P.W.2 also deposed that looking to the activities of the other persons; he suspected that they will finish off him also. He pretended as if he was fast asleep and knowing full well that other accused have slept, he opened the door, latched it from outside and came to Netravathi river and spend whole night there. In the morning, he talked to one Doddanna, the lorry driver, who was washing the lorry and on his request, he was brought in the said vehicle upto Yestur and later Doddanna himself made him to board another lorry of Kerala State. P.W.2 has further deposed that on that night, he went to the house of his in-laws and told before his wife as to what all had happened. On the morning of 20.11.2005, he came to Satnur village and in order to inform about the incident to P.W.1-Sampath Kumar, he called P.W.1 over phone and informed him that his mother (deceased) is in trouble. 87 When PW-1 asked about the details, he told that if he comes to Satnur, he will tell all the details. At about 5.00 or 5.30 p.m. PW-1 came to Satnur and he narrated about the incident in-detail. P.W.1 went away weeping stating that he will give the complaint before the Police. P.W.2 has further deposed that, 10-15 minutes thereafter, Vijayanagar Police also came and took him to Vijayanagar Police Station, wherein he narrated about the incident. When the Police asked him as to whether he can identify the place of incident, he told that as it was night, he will make an attempt. In spite of making efforts, he was not able to identify the place during night. Then, he was brought back to the Vijayanagar Police Station in the early morning at about 5.00 to 5.30 O'clock. In the morning, P.W.2 told before the Police about what has happened. Police reduced it into writing and obtained his signature. During the day time, they again asked him as to whether he can identify the place of offence. P.W.2 then identified the bridge and told that the accused had thrown the dead 88 body into the river from the bridge. He alighted from the police jeep and went on the bridge to show the place where the dead body was thrown and seeing the blood stains on the bridge, he told that from the said place, the accused had thrown the dead body into the water. P.W.2 further deposed that certain police personnel were deputed there to trace the dead body of Gangamma and he was taken back. The Police were informed through their walky- talky that one body was traced. Then, again he was taken back to the said place and the said place was at the distance of about 200 meters from the place where the dead body of Gangamma was thrown. The dead body was identified by him on the basis of the injuries on the head, as Gangamma was assaulted with the U.B.bottle. So also after seeing her face, he identified the deceased. He identified the place where the incident had taken place and at the said place, he also identified the papers in which they carried the parceled meals, the thread, UB bottle pieces, broken bangle pieces of Gangamma, wine bottles 89 and the mud which was thrown on the blood stains of Gangamma. P.W.2 has shown all these articles to the police and police have video graphed the same and also drew the mahazar. He has signed the mahazars Exs.P-6 and P-7; Srinivas and Govindraju also signed. P.W.2 has testified about his voluntary statement, which is marked as per Ex.P-8 and his signature is P-8(a).
42. In the cross-examination of P.W.2, he has admitted about certain omissions having been made while giving the statements before the Police under Section 161 of Cr.P.C. He has not stated before the Police that accused Nos.20, 21, 24 came along with accused Nos.14 and 17 on 16.11.2005. He has also not stated before the Police that in the meeting called on 17.11.2005, accused No.15- Smt.Devamma and accused No.25-Smt.Vikasini addressed the meeting and told other members to take action against the person, who had given statement against accused No.1. He has not stated either before the Police or before 90 the Magistrate that accused Nos.4, 20 and 24 entered the house of deceased Gangamma and dragged her holding her tuft. He has not stated that accused Nos.4, 20 and 24 were dragging deceased Gangamma from her house and that Accused Nos.2 and 3 were proclaiming that if anybody faces accused No.1, the same consequence would happen to such persons and nobody came to the rescue of deceased Gangamma. He might not have stated before the Police that accused Nos.2 and 3 have gone and talked with accused No.1 and came back. He has also not stated that when Tata Sumo vehicle came infront of the house of accused No.1 (Mantelingaiah), accused Nos.2, 3, 4, 24, 22, 17, 14 and 20 alighted from the Tata Sumo vehicle and they were taken to the house of accused No.1. So also he has admitted that he has not stated before the Police that accused Nos.2 to 5, 7, 9 to 11, 14 and 22 and himself while proceeding to Dharmastala, washed the Tata Sumo vehicle having blood stains and while so going, accused Nos.3, 4, 14 and 22 told that one eye is satisfied and 91 looking at himself and accused No.11, they have to satisfy one more eye and they were laughing. For that, accused Nos.12 and 14 were telling that they have to wait till the time comes. But looking to the other portions of his cross- examination it is clear that, P.W.2 has deposed that he has stated about the incident of criminal conspiracy by accused No.1 with certain other accused; the accused forcibly abducting/kidnapping deceased Gangamma from her house; taking her to the lonely place, committing her murder and throwing her dead body into the river water. He has also deposed that in the meeting called on 17.11.2005 at 4.00 p.m. in the office of AJMS Organization except accused No.19-M.Mahadevu, accused No.21- H.K.Putta and accused No.23-Lokesh @ Mark Lokesh, the other accused had participated.
43. The evidence of P.W.10 - N. Mahesh, who was working in the petrol bunk as a cashier, goes to show that on 25.11.2006, the police have seized the receipt book 92 marked as per Ex.P.16 and the receipt bearing No.9973 is in his hand writing and it is as per P.16(a). In P.16(a) - the carbon copy of the receipt, the vehicle number was mentioned as No.KA-12-M.5843 and it bears small initial as per P.16(b). The diesel bill was for a sum of Rs.1,002.06 paise. As per the receipt, 28.5 litre diesel was filled and the police had drawn the mahazar for seizing the receipt book and the receipt is as per Ex.P.17 and P.17(a) is his signature. When he was cross examined by Public Prosecutor, he has admitted that in the receipt, he will mention the vehicle number, but he will not mention the type of the vehicle. He has also deposed that he has stated before the police that the said Tata Sumo vehicle went towards Vivekananda Road. Even in the cross examination of this witness, nothing worth has been elicited from him to disbelieve that the said Tata Sumo vehicle went to the petrol bunk and got filled the diesel as per the receipts Ex.P.16 and P.16(a).
93
44. The evidence of P.W.11 (R. Shivakumar) proves that the police have seized the bill book Ex.P.16 under the mahazar Ex.P.17.
45. The evidence of P.W.21 (Ayaz Pasha) shows that the Tata Sumo vehicle bearing NO.KA-12-M.5843 was transferred in the name of accused No.1 (Mantelingaiah) by P.W.21. The evidence of P.Ws.21 and 22 is supported by the document i.e., delivery note Ex.P.33, which shows that the Tata Sumo vehicle was delivered to Smt. Pushpa Vikasini, wife of Mantelingaiah. We have also perused the document Ex.P.34 the seizure mahazar under which the delivery note Ex.P.33 has been seized in the presence of the panch witnesses.
46. From the evidence of P.W.12 (Mahalinga Bhat), who was working in the Temple at Dharmastala, it is evident that, on 18.11.2005 as Mr. Sadanand was on leave, he was in charge of the 2nd shift from 6.00 p.m. to 94 next day till 8.30 a.m. He deposed that when there will be more number of people in the temple, they will come one hour in advance to attend the work. On 18.11.2005 at 5.30 p.m., he came to attend his work. On that day in the morning CW-15-Surendra was on duty. Room Nos.251 and 253 were allotted to one Shivashetty of Mysuru. Regarding the allotment and vacation of the rooms of their guest house, he has testified about the receipt generated and marked as per Ex.P-20. In Ex.P-20(a & b) at Nos.118 and 121, there is a mention about the allotment of the rooms to Shivashetty. On 19.11.2005 at 4.50 a.m., the rooms were vacated. Rs.100/- was taken as advance and then Rs.30/- was deducted for each of the rooms, totaling to Rs.60/-. Thus, Rs.40/- was returned back. Normally, they will give one room for 5-6 persons, but as the people were more, they gave two rooms to Shivashetty.
During the course of cross-examination, P.W.12 has deposed that after the computerization, they have not kept the register book. He denied the suggestion that in the 95 year 2005, they kept the register books and there were no computers. He denied the suggestion that Shivashetty had not at all taken room Nos.251 and 253 and not stayed in the said rooms and he is deposing falsely.
47. PW-13 Surendra, who is the Guest House Manager at Dharmastala has deposed that since 14 years, he is working at Dharmastala. On 18.11.2005, he worked as Manager from 8.30 to 6.00 p.m. On that day at 5.55 p.m. room Nos.251 and 253 were given to Shivashetty of Mysuru. As there were more than 10 people, two rooms were given to them, and if the people are less than six, they will give one room.
During the course of cross-examination, nothing has been elicited from P.W.13 so as to disbelieve his evidence about the giving of two rooms to Shivashetty of Mysuru.
48. PW-14 Sadananda Rao working as Manager in the Guest House at Dharmastala has deposed in his 96 evidence that since 14 years he is working as Manager in the Guest House at Dharmastala. From 16.11.2005 till 19.11.2005, he proceeded on leave and had not attended to his work. He has also deposed that out of three persons working, if one proceeds on leave, instead of three shifts, the other two persons will work in two shifts i.e., from 8.30 a.m. to 6.00 p.m. and from 6.00 p.m. to 8.30 a.m. During the course of his cross-examination, P.W.14 has deposed that as the Police asked information about room Nos.251 and 253, he has furnished the same to them. He has denied the suggestion that nobody stayed in room Nos.251 and 253 and due to the pressure of Police, he created the document Ex.P-20 and furnished the same to the Police.
49. PW-16-Srinivas of Mysuru, he has deposed in his evidence in the examination-in-chief that in the month of November 2005, Police called him to Vijayanagar Police Station. Along with the Police, PW-1 Sampath Kumar and 97 his wife and others were present. They all went to H.D.Kote road and Hullhalli road. Nearby the bridge, accused-Shankar showed the place of throwing the dead body of Gangamma. Police conducted the mahazar in respect of the said place and the said mahazar is marked as per Ex.P-6, P-6(b) is his signature. At the distance of 500 feet from the said place, there were bushes and the dead body of Gangamma was lying facing downwards, Police have conducted the mahazar of that place also. Nearby the said place, there was a place for washing the clothes, the said mahazar is marked as per Ex.P-5 and his signature is P-5(b). The Police have also seen the dead body and drew the mahazar as per Ex.P-21, P-21(a) is his signature. The mahazar proceedings were completed at 5.30 p.m. and thereafter, they were taken to the place where Gangamma was assaulted by the accused Shankar i.e., P.W.2 showed the said place to the police. At the said place, there were beer bottles, hairs of Gangamma, the clothes and blood stains on the ground and the police have 98 seized the blood stained mud and sample mud so also the hair and bottles from the said place and the piece of a saree was also seized, which is marked as MO-5. He has seen the beer bottle pieces, plastic cups, blood stained and sample mud, blood stained hair, bangle pieces marked as per MOs-1 to 4 and 6 to 9. MO-10 was also seized from the said place under the seizure mahazar Ex.P-7, P-7(b) is his signature.
During the course of cross-examination by the advocate for the accused, P.W.16 has denied the suggestion that a day earlier to he going to Vijayanagar Police Station, at 9.30 p.m. himself, his brother-in-law, accused No.12-Shankar and PW-1-Sampath Kumar had been to Vijayanagar Police Station; that Police have read over the contents of Ex.P-6 to him; that he went to the said place in the Police vehicle itself. He has denied the suggestion that he has not read the contents of Ex.P-6 and that even Police have also not read over the contents of Ex.P-6 to him. He denied the further suggestion that he 99 had not been to the said place and Ex.P-6 mahazar was not at all drawn at the said place; the place where the dead body of Gangamma was traced, there was water of 4 to 5 feet depth; as there were bushes in the said place, the dead body was struck in the said bushes. He denied the suggestion that in the said place as there was flow of water, anything that put into the said place will float. He denied the suggestion that the dead body traced was not of Gangamma and is falsely deposing that it is the dead body of Gangamma. Ex.P-7 mahazar was drawn from 4.00 p.m. to 5.00 p.m. He denied the suggestion that himself and Govindraju together made Gangamma to disappear. Along with him, one male and one female have signed Ex.P-5, those persons may be of Mysuru. They went in two Police jeeps, other people also came in other vehicles. After they went to the said place, many people gathered there. Accused No.12-Shankar showed the place where Bottles, paper bundles, bangles pieces, hair were found. While writing Ex.P.7, 5 to 6 items were seized and sealed. 100 From the police station, accused No.12 (Shankar) took the Police to the scene of occurrence in the jeep. He has denied the suggestion that he has signed Exs.P-5 and P-6 in the Police Station. He denied the further suggestion that Police have not at all called him while conducting mahazars and that he assisted the Police in creating false case against the accused. He has denied the further suggestion that himself, Govindraju, PW-1-Sampath Kumar and accused No.12-Shankar together committed the murder of Gangamma. Accused No.12 showed the place where the dead body was thrown. Then Police have conducted the mahazar and he has signed the said mahazar.
50. PW-17 Basavaraj has deposed in his evidence that in the month of November 2005, police called him in connection with the case to the Vijayanagar Police Station. From there, Accused No.12 and the police took him to river bridge near Hampapura in H.D.Kote Taluk. Accused No.12 (Shankar) showed the place stating that it is the place 101 where the dead body was thrown. Police have verified the said place and drew the mahazar as per Ex.P-6, P-6(c) is his signature. The dead body was traced about half kilometer from the place where it was thrown. It was brought outside the nala and Police have conducted mahazar Ex.P-5, P-5(c) is his signature. After verifying the dead body, another mahazar was conducted under Ex.P-21 and his signature is as per Ex.P-21(b). He was then taken to another place about distance of 2-3 kilometers by Accused No.12 stating that it is place, where Gangamma was assaulted. From the said place, Police have seized the plastic glass pieces, pieces of saree, the blood stained mud, sample mud and drawn the mahazar as per Ex.P-7, P-7(c) is his signature. He has further deposed that 8-10 days thereafter, Police took him to Belgul. At that time, one accused was present. He does not remember his name. The said accused brought one shirt from the house and produced before the Police. There were blood stains on 102 the said shirt; Police have seized the said shirt under the seizure mahazar at Ex.P-22 and his signature is P-22(a).
Thereafter, Police took him to another accused at Jayadev Nagar, Metagalli. He does not remember his name and Police seized one saree having the blood stains under the mahazar Ex.P-23, his signature is P-23(a). Then, Police took them to Lakshmikanth Nagar where some accused persons were present along with Police. But he does not know their names; there also, the Police have seized one saree having blood stains under the mahazar Ex.P-24, P- 24(a) is his signature. At 5.00 p.m., they were taken to Ramabhai Nagar in front of JP Nagar and there, the Police seized one nighty under the mahazar, which is marked as per Ex.P-25 and P-25(a) is his signature. After some days, Police took him to the house of accused No.1- Mantelingaiah at Kesare and seized one shirt having the blood stains under the mahazar as per Ex.P-26 and Ex.P- 26(a) is his signature. He has seen the signature on the mahazar Ex.P.27 and his signature is marked as per P- 103 27(a). In Vijayanagar Police Station, Police have seized one bank account form and obtained his signature to Ex.P-28.
This witness was treated as hostile and cross- examined by the PP. To the suggestion made by the PP that on 20.12.2005 Police took him to Belagul in connection with the mahazar, he has deposed that he is illiterate and he cannot tell the date; to the another suggestion that accused No.9-Shivashetty brought and produced one shirt from house No.159 at Seebayana Mandi, he answered that he was standing outside. For the suggestion that accused No.9, who was present before the Court took them and produced the shirt, witness answered that as there were many persons he cannot say who is that person. He admitted as true that accused Bhagyamma took them to house at Jayadevanagar and when they were standing near the road she produced one saree and when it was suggested to the witness that accused Bhagyamma, who is present before the Court was present while drawing Ex.P-23 mahazar, this witness answered that the others 104 were also present with her. He admitted as true that while drawing Ex.P-24, accused Saraswathi took them to Lakshmikanth Nagar. While conducting Ex.P-25 mahazar at J.P. Nagar/Ramabai Nagar, accused might have taken them to the said place. In the said place, accused Krishnaveni produced one blood stained nighty. He admitted as true that while drawing mahazar Ex.P-26 at Kesare, accused No.3 Nagaraj @ Kencha took them to the said place and produced one blood stained shirt and Police have seized it. He admitted as true that all those mahazars are conducted at the respective places and the contents of the said mahazars were read over to him.
In the cross-examination, P.W.17 has denied the suggestion that he was not at all taken to the place of bridge near the river, he was not taken to the place where the dead body was taken out and to the scene of occurrence and he has signed Exs.P-5 to P-7 in the Police Station. He denied the further suggestion that Ex.P-27 was not conducted in his presence, he was called to the 105 Police Station and Police obtained his signature. He has also denied the suggestion that he signed Exs.P-22 to 26 in the Police Station and he had neither been to the said places nor any clothes were seized in his presence.
51. We have perused the said mahazar Ex.P-22, the contents of which shows that accused Shivashetty S/o Kenchashetty, who was apprehended in connection with the case, was introduced to panch witnesses i.e., Gopala (PW-26) and one Basavaraju and told them that accused has already given voluntary statement before the Police stating that since the shirt worn by him at the time of offence on 17.11.2005 i.e., on the date of the offence, was blood stained, he went to his house and changed the said cloth and hide the shirt having blood stains in his house and if he is taken to the said house he will produce the same. The contents of the said mahzar Ex.P-22 also shows that as Police requested the panchas to act as panch witnesses, they agreed for the same. It further shows that 106 said accused No.9-Shivashetty led the panchas and Police to the said place and he went inside the house, took out one shirt kept in the plastic bag, which was mixed with other clothes, and he produced the said shirt stating that it was the shirt worn by him at the time of incident, it was a cream colour full sleeves shirt and in the front side of the said shirt there were blood stains, Police have seized the said shirt by drawing the mahazar and packed and sealed with the seal having letters KS.
52. We have also perused the oral evidence of P.W.26 Gopala, who has deposed in his examination-in- chief that about 4 years 3 months back he had been to Vijayanagar Police Station in connection with his work, along with him one Basavaraju was also present. Then, Police told them that an incident has taken place and they have to go along with one Shivashetty, the accused; this witness (PW-26) has also identified accused No.9 in the Court. When the said accused was asked about his name, 107 he told his name as Shivashetty (as recorded by the Trial Court).
53. We have perused Ex.P-23 the seizure mahazar under which blood stained saree of accused No.6-Bhagyamma, which was seized by the Police on the basis of her voluntary statement. We have also perused the voluntary statements of accused Nos.9, 5 and 3 as per Exs.P-122, P-124 and P-126, respectively.
The contents of the said mahazar Ex.P-23 shows that panch witnesses i.e., P.W.17-Basavaraju and P.W.26- Gopala, were called to the Police Station and accused No.6 Smt.Bhagamma was introduced to them and also told that accused No.6 has already given the voluntary statement before the Police that in connection with the incident dated 17.11.2005 she changed her blood stained saree and hide it in her house, and if she is taken to the said house she will produce the said blood stained saree. Accused No.6 led the Police and panchas to her house, she went inside 108 her house, and brought and produced one saree of purple and blue colour, and at the border of the said saree there were blood stains, Police have seized the said saree under the mahazar Ex.P-23, packed and sealed by the seal having the letters KS.
In the oral evidence, PW-17 has also deposed that Police went to Metagalli, Jayadevngar and one accused was present with the Police, he does not know the name of the said accused; Police have talked to the person in the said house and brought one saree, which was blood stained and seized it under the mahazar Ex.P-23 and his signature is marked as P-23(a).
P.W.17 was treated as hostile as per the request of PP, he was also cross-examined by the PP, wherein, he has deposed that Bhagyamma (A-6) took them to her house at Jayadevangar and when they were standing on the road, she brought and produced one saree. He has further deposed that while conducting the mahazar Ex.P-23, said accused was present along with some other persons. 109
54. We have perused the mahazar Ex.P-24, the contents of which shows that Basavaraju (P.W.17) and one Kumari W/o Shivamullu are the panch witness to the said mahazar; Police called them to the Police Station and accused No.7 Smt.Saraswathamm @ Thonamma W/o Parashivamurthy was introduced to them and told that accused No.7 has already given the voluntary statement before the Police stating that as the saree, which she worn at the time of incident on 17.11.2005 i.e., on the date of incident was blood stained, she went to her house, changed and hide the said blood stained saree in her house and if she is taken to her house, she will produce the said blood stained saree, and Police have requested them to act as panch witnesses. Accused No.7 led the Police and panchas to her house, she went inside her house and from the suit case kept in the hall she took out one saree, which was having red and white design, and there were blood stains, Police have seized the said saree under the 110 mahazar Ex.P-24, packed and sealed by the seal having the letters KS.
In the oral evidence, P.W.17-Basavaraju, the panch witness to the said mahazar, has deposed that Police have took them to Lakshmikanth Nagar, along with the Police some accused were present, he does not know their names; at the said place also Police have seized one saree having blood stains under the mahazar Ex.P-24 and P- 24(a) is his signature.
P.W.17 was treated as hostile as per the request of PP and this witness was also cross-examined by the PP, wherein, the witness deposed that when Ex.P-24 mahazar was conducted at Lakshmikant nagar accused No.7- Saraswathi took them to the said place.
In the cross-examination, P.W.17 has denied the suggestion that he has signed Exs.P-22 to P-26 in the Police Station and neither he had been to any place nor any such clothes were seized in his presence. 111
55. P.W.26 has deposed in his evidence that accused Smt.Bhagyamma was present in the Police Station and he identified said Smt.Bhagyamma (accused No.6) also in the Court. Police Inspector took himself, Basavaraju, Bhagyamma (A-6), Shivashetty (A-9) and another accused in Garuda Jeep. They went to Mante Village near Belgul, there, accused No.9-Shivashetty took all of them into his house and from his house he brought and produced one shirt; Police have seized it under the mahazar Ex.P-22 and his signature is P-22(b). The witness has identified the blood stained shirt as MO.17 before the Court.
In the cross-examination, P.W.26 has denied the suggestion that PW-1 has took him to Police Station. In the Police jeep himself, his friend Basavaraju, the above said three accused and 2-3 Police staff were also present. Accused No.9-Shivashetty took them to one house. He has not observed how many persons were there in the said house. In his presence, said accused has not given any 112 statement before the Police. He identified the said shirt on the basis of his signature on the packet in which it was seized. He has denied the suggestion that they have not been to the house of accused No.9-Shivashetty nor they have seized any cloth and he put his signature on the packet in the Police Station itself. He has denied the further suggestion that often he goes to Police Station whenever Police required his assistance. He has denied the further suggestion that Police have kept the mahazar ready in the Police Station and at the instance of the Police he has signed the mahazar in the Police Station itself.
56. We have also perused the records and the blood stained shirt of accused No.3-Nagaraj, which was seized under the mahazar Ex.P-26. Looking to the contents of Ex.P-26, it is stated therein that on 22.12.2005 when the panch witnesses i.e., Shivanagappa and Basavaraju had been to their work, they were called by the Inspector of Vijayanagar Police Station; Police Inspector introduced one 113 person i.e., accused Nagaraj @ Kencha S/o Shivanna and told that said accused Nagaraj has given the voluntary statement before the Police stating that the shirt, which he had worn at the time of incident i.e., on 17.11.2005 was blood stained, hence, he went to his residential house and changed the clothes, and he kept the said blood stained cloth in his house and if he is taken to the said house he will produce the same before the Police and requested the panchas to act as panch witnesses and when they enquired with accused No.3-Nagaraj, he confirmed of giving such voluntary statement and then he led the Police and panch witnesses to his house and took out the shirt, which was kept in the almirah along with other clothes and produced before the Police; said shirt was of cement colour having black and white long stripes and it was a full sleeves shirt having the label Nakoda on the collar and there were blood stains on the said shirt, Police have seized and sealed the said shirt by the seal bearing the letter KS. 114
57. Looking to the oral evidence of P.W.29 Shivanagappa, who has deposed in his evidence in the examination-in-chief that about four years back, one day he had been to Vijayanagar Police Station for giving the complaint, at that time accused Nagaraju @ Kencha was present in the Police Station and said accused told the Police that he will take them to his house. Police called him to accompany them, accordingly, himself, Basavaraju and the Police went along with accused-Nagaraju, who took them to his house and from the almirah in his house, he took out one cement colour shirt having black and white stripes, which was blood stained; Police have seized the said shirt, packed and sealed it. He identified his signature on the seizure mahazar Ex.P-26, which is marked as P- 26(b) and he has also identified accused No.3 before the Court that he is the person, who took them to his house.
In the cross-examination, P.W.29 has deposed that Police have not issued any written notice to him, but they have called him in connection with the mahazar. He has 115 not talked to accused No.3-Nagaraja and accused No.3 has also not talked to him. On that day, one inspector, panchas, 2-3 Police left in the Police jeep and accused took them to the said house, it was a house having the tile roof, when they entered the house there was one big room and almirah was kept in the said room and accused himself opened the almirah and took out one shirt and produced before the Police. He denied the suggestion that accused Nagaraj has neither led them to his house nor produced any cloth and Police have not seized the said cloth. He has denied the further suggestion that he has not seen the said shirt in the house of accused No.3, but he has seen it in the Police Station.
58. We have also perused the oral evidence of PW- 56, Investigating Officer, G.N.Mohan. He has deposed in detail about the investigation that he has conducted and he has also spoken about the mahazars Exs.P-5, P-6, P-7, P- 16, P-17, P-21, P-33, P-34 and P-35 and seizure of M.Os.-1 116 to 10 from the scene of occurrence. He has further deposed about recording of voluntary statement of accused No.9-Shivashetty under Ex.P-122 and seizure of shirt M.O.17 produced by said Shivashetty under the seizure mahazar Ex.P-22 and also the voluntary statement of accused No.6-Bhagyamma recorded as per Ex.P-123 and seizure of saree at her instance in the presence of panch witnesses under Ex.P-23 seizure mahazar. He has also spoken about the voluntary statement of accused No.7- Saraswathi as per Ex.P-124 and seizure of the design saree in the presence of panch witnesses under Ex.P-24 seizure mahazar, so also recording of voluntary statement of accused No.5 Krishnaveni as per Ex.P-125, who had produced one maroon colour design nighty in the presence of panch witnesses seized under seizure mahazar Ex.P-25. P.W.56 has also spoken about accused No.2 Siddaraju @ Sidda giving voluntary statement as per Ex.P-127 and taking the Investigating Officer and panch witnesses to Dharmastala and producing the iron rod M.O.20, which was 117 seized under mahazar Ex.P-106 and thereafter, accused No.2 taking the Investigating Officer and panch witnesses to his house at Mysuru bearing No.313. From the Almirah in the said house, accused No.2 took out one shirt marked as M.O.27 and the same was seized under seizure mahazar Ex.P-107. He has further deposed that Inspector Ramamurthy brought and produced Exs.P-20 and P-98 before him and he subjected them to PF. He has also deposed about recording another voluntary statement of accused No.2 Sidda as per Ex.P-128 and accused No.2 took the IO, panch witnesses and Police staff to his parents house and took out two receipts from the Almirah, marked as per Exs.P-109 and P-110 which were seized under seizure mahazar Ex.P-108.
The deposition of PW-56 shows that the Trial Court provided sufficient opportunity to the accused to cross- examine PW-56 and inspite of giving such opportunity, the accused have not at all cross-examined PW-56 Investigating Officer.
118
59. We have also examined the oral evidence of PW- 47-B.Puttabasavaiah, who is an expert from FSL, Bengaluru. He has deposed in his evidence that he examined four items sent to him as mentioned in his deposition i.e., blood stained mud and sample mud and and he issued report as per Ex.P-99. In his cross- examination nothing was elicited to disbelieve his evidence.
60. PW-50-B.Nanjundappa, Deputy Director of FSL, Mysuru has deposed in his evidence that on 06.12.2005, he received six sealed items in connection with Mysuru Vijayanagar Police Station Crime No.186/2005 for examination. He subjected those six items to chemical examination and at item Nos.2 and 4, he found no blood stains and other 4 items were blood stained. He has submitted his report, which is marked as per Ex.P-102. He has further deposed that on 10.1.2006, he received the 119 seven sealed packets and the seal put on the said packets were tallying with the seal sent by the investigating officer and he opened the said packets. The first packet was containing the sample blood and in the other sealed packets, there were a shirt and two sarees, one nighty and one more shirt. In item No.7, there was sodium chloride preservative. As requested by the investigating officer, they cut the blood stained portions from the said items and they were subjected to chemical examination. It was confirmed that they were the blood stains and he issued the report as per Ex.P.104 and P.104(a) is his signature. The sample seal is as per Ex.P.105. The said items were identified by the witnesses before the Court marked as M.Os.17, 24, 18, 23 and 19.
In the further examination in chief, he deposed that he issued the report Ex.P.112 and P.112(a) is his signature.
In the cross examination, P.W.50 has deposed that for the confirmation of the blood stains, they have 120 conducted catalytic examination and crystal examination. He has denied the suggestion that all the items, which he has examined, were not at all having any such blood stains as they were decomposed in the water and the items were not at all suitable for the examination and even then, he is giving the false evidence that there were blood stains.
61. P.W.55 N. Purushothama, an FSL Officer, has deposed that from February 2004, he is working as the Scientific Assistant in the FSL at Bengaluru. He has seen the serology report and he, himself has given it. It is as per Ex.P.114 and his signature is as per P.114(a). In connection with BS No.26/2006, the blood stained portion of item No.2 shirt, item No.3 saree, item No.4 saree, item No.5 nighty and item No.6 shirt, were sent to him for giving the serology report. On 22.4.2006, he subjected them to serology examination and found that the blood stains on the said items were of the human blood. When he conducted examination about the blood group, the 121 blood stains on item Nos.2 to 6 were of 'B' group blood and he has mentioned the same in his report.
In the cross examination, P.W.55 has deposed that if he conducts serology test, he will come to know the approximate age of the blood stains. He was not asked to give the age of the blood stains and so he has not mentioned the same in his report. He has denied the suggestion that as per the request of the police, he issued Ex.P.114 and he did not find 'B' group blood in any items that he has examined.
62. We have perused the FSL reports as per Exs.P- 102, 104, 112 and also serology report Ex.P-114. These materials clearly show that the seized items as per the voluntary statements of respective accused, as discussed above, were having the blood stains and those blood stains were of human origin and the item Nos.2, 3, 4, 5 and 6 were stained with 'B' group of blood. This aspect also 122 clearly establishes the involvement of the said accused persons in the offence alleged.
63. We have perused the medical evidence. Ex.P-52 is the Post Mortem report of the deceased Gangamma. It discloses that there were 8 external injuries on the deceased, out of which, injury Nos.1 to 7 are contusions on different parts of the body and injury No.8 is a grazed abrasion present on the left sided back. The final opinion as to the cause of death as furnished by the doctor is that, death was due to shock and hemorrhage consequent to multiple injuries sustained, which are possible due to assault.
64. We have also perused the oral evidence of PW- 27-Dr.Y.Udayashankar, who deposed that on 21.11.2005 as per the request of Vijayanagar Police, Mysuru, he conducted Post Mortem examination over the dead body of Gangamma from 4.05 p.m to 5.15 p.m. The body was 123 decomposed, there was change in the colour of the dead body and skin was peeled off. The eyeballs and the tongue were protruded. The doctor has clarified that he noticed 8 injuries at Sl.Nos.1 to 8, when he has verified the skull on the left side, temporal bone was broken. The base of the skull was divided into two parts and there was bleeding in the said place. He has noticed the injuries on the face, thighs, stomach, wrist portions and there were fractured injuries on the skull, ribs both clavicle bones and sternum bone. The doctor has opined that all those injuries are ante mortem in nature. The said injuries have been caused when the deceased was assaulted with blunt object with force. The death occurred 3-4 days earlier to his examination and he has issued PM report as per Ex.P-52, P-52a is his signature.
In the cross examination, P.W.27 has deposed that if the vehicle runs over a person number of times, and if such dead body is put into the water, there is possibility that the such body will be decomposed within a day. But 124 he denied the suggestion that if a stone with heavy weight falls on the body of the person, the injuries mentioned at Ex.P.52 can be caused. He has also denied the suggestion that when the vehicle runs over the body of the person, there will be tyre marks and the body will be compressed, the skin will be squeezed and the skin will be peeled off or even it may be burnt. The witness also made it clear that in all such instances, the said features need not necessarily appear. He has also deposed that if a person comes into contact with the blunt object, the injuries he has mentioned in Ex.P.52 can be caused. He has denied the further suggestion that as the dead body was completely decomposed, he was not able to examine anything and as per the requisition given by the police and as told by the police, he has issued Ex.P.52.
65. P.W.44 is the wife of P.W.2 Shankar (accused No.12). She has deposed that the marriage with accused No.12 was performed about 15 years back and they are 125 staying in the house bearing No.717 at Lakshmikanth Nagar and the said house was provided to them by accused No.1 Mantelingaiah. Accused No.1 collected Rs.10,000/- from them in respect of the said house. She has further deposed that on 16.11.2005, as her mother was not well, she was at Mandya and on 17.11.2005, she again came back to Mysuru. On that day, the news item given by Gangamma was published in the daily news paper. On that day evening, a meeting was called and her husband went and attended the meeting. She was in the house. On the next day morning, her husband came and asked her to give a pair of clothes to him and asked her to go to her mother's house and accordingly, she went to her mother's house. On 19.11.2005, accused No.12 (P.W.2) again came to house during night and told before her that on 17.11.2005, in the evening Mantelingaiah called the meeting and himself, Andani (accused No.17), Siddaramu (accused No.23), Shobha (accused No.11), Gangaothri Mahadeva (accused No.13), Madhu (accused No.22), 126 Chandramma (accused No.4) Bhagyamma (accused No.6), Kullu Siddaraja (accused No.10), Kencha (accused No.3) and some others attended the meeting in the house of (accused No.1). Because of the publication in the news paper, accused No.1 told them to commit the murder of Gangamma and accused No.2 Siddu agreed for the same. As they were all forced go to the said work, they all went and took Gangamma to the lonely place nearby Kote and after torturing Gangamma, committed her murder and had thrown the dead body into the flowing river. Her husband (accused No.12) also told her that in order to escape from the said incident, they went to Dharmasthala. At the said place, as he came to know that Chandramma (accused No.4), Kullu Siddarama (accused No.10), Siddu (accused No.2) wanted to commit his murder and as he heard about the same, he escaped and came back to house and met her (P.W.44). She further deposed that her husband also told her that accused No.1 will not leave him, and hence he will go and inform the Police Commissioner, Mysuru, 127 Mr.Ravi Belagere and that he will also inform Sampath Kumar (P.W.1) about the incident and then he went away.
In the cross examination of P.W.44, nothing has been elicited in her evidence so as to disbelieve her version that accused No.12 made extra judicial confession before her about committing the murder of Gangamma and throwing her dead body in the flowing river.
66. Looking to all these materials i.e., both oral and documentary about which a detailed reference has been made above, we find that they corroborate the confessionary statement of accused No.12 (PW-2) Shankar about the incident. The material also shows that the confessionary statement is made by accused No.12 voluntarily and with free volition, without any sort of pressure from anybody; it is as a result of realization by himself (Accused No.12). In such heinous offence wherein there is no other clue to the Police about the incident, the accused No.12 has come forward and confessed about the 128 said incident. The oral evidence of P.W.2 (Accused-12) the judicial confession, and the extra judicial confessions are supported by the independent materials both oral and documentary. Accused No.12, who is an approver in this case, had involved in the incident from the stage of conspiracy till the stage of throwing the dead body into the river water and even subsequently, going together along with accused persons to Dharmastala. P.W.2 was also involved in committing the offences. Hence charge was also framed against him and at the time of answering to the plea, he narrated before the Sessions Court that he has already given his confessionary statement before the Learned Magistrate Court. Therefore, looking to the entire evidence on record regarding happening of the incident and the manner in which the incident has taken place, his evidence is worth believable. The evidence of P.W.2 is also supported by the medical evidence and the evidence of experts from FSL about which reference is already made above.
129
67. In this connection, we are referring to relevant paragraphs of the decision of Hon'ble Supreme Court in the case of YAKUB ABDUL RAZAK MEMON VS. STATE OF MAHARASHTRA reported in (2013) 13 SCC 1. At paragraph Nos.275, 280 and 286, Their Lordships of the Hon'ble Supreme Court have observed as under:
275. The Chief Investigating Officer, Bomb Blast Case (CIO, BBC), in his letter dated 28-9-
1993, addressed to the Chief Metropolitan Magistrate stated that after the Bombay Blasts that took place on 12-3-1993, one of the accused, namely, Mohd. Usman Ahmed Jan Khan (P.W. 2) who also participated right from the conspiracy ending with blasts on 12-3-1993 and who had been arrested has submitted an application from jail on 20-9-1993 expressing voluntary readiness and willingness to confess his guilt before the Court. In the said letter, it was further stated that during the investigation, it has transpired that a conspiracy was hatched between the accused persons in Dubai and in pursuance of the said conspiracy, some of the accused persons involved 130 in the blasts were sent to Pakistan for training in handling RDX explosives, firearms, grenades, etc. It further transpired during investigation that the said conspiracy was hatched in order to strike terror in people as well as to affect adversely the harmony between Hindus and Muslims and also to wage war against the Central and the State Government. In the said letter, it was further stated that except the participants, nobody had any personal knowledge of how, when, where and why the criminal conspiracy was hatched and how all the details were chalked out to perfect the said conspiracy, how different acts were carried out with determined intention of achieving the object of the said conspiracy including training in Pakistan, how RDX explosives and other firearms were smuggled into India, how the RDX laden vehicles were planted at different places in Bombay and how the bomb blasts took place.
280. A perusal of the entire evidence of P.W.2 clearly show that at no point of time he acted under pressure to become an approver. It is also clear that after serious thought and due to repentance, he realized that in such a serious matter it is better to reveal all the details to the 131 Court. He withstood the lengthy cross-
examination. P.W.2's testimony runs into hundreds of pages and he covered all the aspects starting from initial conspiracy and ending with execution of blasts at various places in Bombay on 12-3- 1993. We are also satisfied that his confessional statement before the Deputy Commissioner of Police and his statement before the Designated Court are not borne out of fear but due to his conscience and repentance. We are also satisfied that his statement is believable and merely because at one or two places, he made certain comments on the omission/addition in the statement recorded by the Chief Investigating Officer, it does not materially affect the statement. On the whole, his testimony is reliable and acceptable and the Designated Court rightly relied on his entire statement in support of the prosecution case.
286. In the light of the provisions of Section 133 read with Section 114 Illustration (b) of the Evidence Act this Court has held that the evidence of an approver needs to be corroborated in material particulars. The evidence of the approver 132 has been corroborated in material particulars by way of primary evidence by the prosecution. The observations of Their Lordships in the said paragraphs, are aptly applicable to the case on hand also.
68. Therefore, the materials i.e., both oral and documentary clearly show that the oral evidence of P.W.2 approver is corroborated by the independent evidence of prosecution witnesses and also the documents produced in the case. The evidence of P.W.2 shows the manner in which conspiracy was held by accused No.1 with other accused persons and the manner in which deceased Gangamma was abducted/kidnapped and as to how she was taken to the lonely place and was murdered and the dead body was thrown into the Kabini river.
69. The Investigating Officer i.e., PW-56 has not been cross-examined by any of the accused persons. But on that ground, none of the learned counsel sought for 133 remand of these appeals and they want disposal of the matter on merits. Perusing the disposition of PW-56, Investigating Officer, it is clear that sufficient opportunity was given to the accused persons and their counsel to cross-examine PW-56. It is also noticed from the said deposition that though the junior as well as senior advocates were present before the Court and though there is a direction from this Court to dispose of the matter early, the said advocates did not come forward to cross- examine PW-56. Under these circumstances, it cannot be said that opportunity to cross-examine PW-56 has been denied by the Trial Court to the appellants-accused.
70. By perusing the entire material on record i.e., both oral and documentary meticulously we find that so far as the accused No.8-Bhagya @ Bhagyamma W/o Janardhana, accused No.19-M.Mahadevu S/o Madappa and accused No.20-Jayarama S/o late Hanumabovi are concerned, there is no consistent, cogent and worth 134 believable evidence about their participation in the commission of either abduction of Gangamma or about committing the murder of deceased Gangamma.
So far as accused No.25-Smt.Vikasini W/o Mantelingaiah-accused No.1 is concerned, in the first complaint Ex.P-2, there is no mention about her role in the alleged incident. Looking to the second complaint, Ex.P-4, there is an allegation that she participated in the meeting held on 17.11.2005 at 4.00 p.m. and addressed the members, who attended the meeting and asked them to take action against deceased Gangamma. But, as we have already observed above in the cross-examination of PW-2, he has admitted that he has not stated about the same before the Police during investigation and hence, regarding this material aspect of the matter, there is an omission. Even with regard to the averments in the second complaint Ex.P-4 that, after the incident of murder was over, accused No.25 gave Rs.6,000/- to accused No.2 and asked him to go to Dharmastala along with other accused to stay there 135 for 4-5 days. Even with regard to this also, there is no satisfactory and acceptable material as against accused No.25.
71. In respect of accused Nos.15, 16 and 18 i.e., Devamma, Sarojamma and Auto Sridhar, respectively, in the complaint Ex.P-4 it is mentioned that as the fuel in the autorickshaw was exhausted, they were sent back; accused No.18-Auto Sridhar told Accused No. 2 and others that if they had stated in advance that he has to follow them to such a long distance, he would not have accompanied them; he told that it is not possible for him to follow them further and he demanded his hire charges stating that he will go back. The averments in the complaint Ex.P-4 show that he was sent back. It is no doubt true that Ex.P-4 discloses that accused No.17- Chikkandani was also returned back, but the other material on record shows that he proceeded further in the Tata Sumo vehicle and he was present at the place where 136 Gangamma was murdered. So also he was present and proceeded along with other accused to Dharmastala. Therefore, looking to these materials on record, it is clear that accused Nos.15, 16 and 18 i.e., Devamma, Sarojamma and auto Sridhar, respectively, are liable to be convicted only for the incident of abduction/kidnapping and not for the incident of murder of deceased Gangamma.
72. We have also perused the decision relied upon by Sri Prasanna Kumar Daroji, learned counsel in case of H.C. KARIGOWDA @ SRINIVASA AND OTHERS VS. STATE OF KARNATAKA OF HOLENARASIPURA TOWN POLICE reported in ILR 2013 KAR 992. With regard to the contention of the learned counsel for the appellants- accused that on 18.11.2005 at about 9.00 or 10.00 a.m. the Police came to Lakshmikanth Nagar and enquired with PWs-3 and 4 i.e., Ratnamma and Geeta, respectively, who are said to be the eye-witnesses for the alleged abduction and recorded their statements and hence, their statements 137 ought to have been treated as first information in this case and not the complaint under Ex.P-2 filed by Sampath Kumar. But in the case on hand, it is an admitted fact that P.Ws.-3, 4 and 6 though are the eye-witnesses to the first incident i.e., incident of abduction/kidnapping of deceased Gangamma from her house but they are not the eye- witnesses to the subsequent incident i.e., incident of murder of deceased Gangamma. Therefore, regarding the incident, it was only PW-2, who was having the personal knowledge about the entire incident which has taken place and in the evening of 20.11.2005, he called PW-1-Sampath Kumar and narrated the incident; immediately thereafter, he was apprehended by the Police and before the Police also, he narrated as to what had happened in the case. In view of the same, we are of the opinion that said decision reported in ILR 2013 KAR 992 will not be applicable to the facts of the present case. Therefore, the contention of the learned counsel for the appellant-accused cannot be accepted.
138
73. Perusing the material placed on record, both oral and documentary, we are of the opinion that so far as accused No.8 (Smt. Bhagya @ Bhagyamma), accused No.19 (M. Mahadevu), accused No.20 (Jayarama), accused No.23 (Lokesh @ Mark Lokesh) is concerned, the prosecution has not placed satisfactory and cogent material to show that the said accused persons have committed the alleged offences. So far as these accused are concerned, reasonable doubt arises in the mind of the Court about their participation and involvement in committing the alleged offences.
We have also noticed that so far as accused No.15 (Devamma), accused No.16 (Sarojamma), accused No.18 (Sridhar @ Auto Sridhar), their conviction even for the offences under Sections 302 and 201 IPC is not supported by cogent and satisfactory material. Therefore, the judgment and order of conviction of the trial Court for the said offences in respect of the said accused is also not 139 sustainable in law. But the conviction of the said accused for the remaining offences so also the sentence imposed on them does not require interference and accordingly, the same stands confirmed and it remains as it is.
74. Except the observation made in para No.73 of this judgment and its modification to that extent, rest of the judgment and order of the trial Court is hereby confirmed.
75. In view of the aforementioned reasons, we pass the following:
ORDER
(i) Crl.A No.993/2011 only in respect of accused No.8-Bhagya @ Bhagyamma W/o Janardhan, Crl.A.928/2011 preferred by accused No.19-
M.Mahadevu S/o Madappa, Crl.A.1037/2011 preferred by accused No.20-Jayarama S/o Late Hanumabovi, Crl.A.1101/2012 preferred by 140 accused No.23 Lokesh @ Mark Lokesh, Crl.A.1042/2011 only in respect of accused No.25-Smt.Vikasini W/o Mantelingaiah (accused No.1), are allowed and the judgment and order of conviction dated 30.08.2011 passed in S.C.No.1/2007 by IV Addl. Sessions Judge, Mysuru, in respect of the said accused is hereby set-aside and the said accused are acquitted of the charges leveled against them.
(ii) Crl.A.980/2011 preferred by accused No.15- Devamma W/o Siddaraja, Crl.A.993/2011 only in respect of accused No.16-Sarojamma W/o Nanjundaswamy and Crl.A.1092/2014 preferred by accused No.18-Sridhar @ Auto Sridhar S/o late Padmanabha are partly allowed and the judgment and order of conviction dated 30.08.2011 passed in S.C.No.1/2007 by IV Addl. Sessions Judge, Mysuru, in respect of these accused for the offences punishable under 141 Sections 302 and 201 of IPC is set-aside and the conviction of the said accused for the offence punishable under Sections 120B, 143, 148, 365 read with Section 149 and the sentence is hereby confirmed.
(iii) Crl.A.1042/2011 only in respect of accused No.1-Mantelingaiah, Crl.A.1098/2012 preferred by accused No.3-Nagaraju @ Kencha, Crl.A.1216/2011 preferred by accused No.4- Smt.Chandramma W/o Babu, Crl.A.1010/2011 preferred by accused No.6-Smt.Bhagyamma W/o Nagachar, Crl.A.1293/2011 preferred by accused No.9-Shivashetty S/o Kenchashetty, Crl.A.1066/2011 preferred by accused No.13-
Gangotri Mahadeva @ Mahadeva, Crl.A.1099/2012 preferred by accused No.14-Bar Beding Nanja @ Nanju, Crl.A.1100/2012 preferred by accused No.17-Chikkandani @ Andanaiah, Crl.A.1201/2011 preferred by accused No.21-H.K.Putta S/o late Kariyaiah, 142 Crl.A.1053/2011 preferred by accused No.22- Smt.Madhu @ Madhubala W/o Parthasarathi are hereby dismissed and the judgment and order of conviction dated 30.08.2011 passed in S.C.No.1/2007 by IV Addl. Sessions Judge, Mysuru, in respect of these accused stands confirmed.
(iv) The sentences in respect of above mentioned convicted accused shall run concurrently.
(v) The convicted accused are entitled to the benefit of set off of the custody period which they have already undergone, as per Section 428 of Cr.P.C.
Sd/-
JUDGE Sd/-
JUDGE Cs/BSR Ct-Sg/-