Karnataka High Court
Devaraja @ Raja vs State Of Karnataka By on 5 April, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.1423 OF 2012
BETWEEN:
1. DEVARAJA @ RAJA
S/O PATEL VEERABHADREGOWDA
AGED ABOUT 39 YEARS
GYARAHALLY, HASSAN TALUK,
HASSAN DISTRICT.
2. VISHALAKSHI
W/O LATE JAYA @ THAMMAIAH
AGED ABOUT 48 YEARS,
PUMP HOUSE STREET
BELUR TALUK,
HASSAN DISTRICT.
...APPELLANTS
(BY SRI H.S.CHANDRAMOULI, ADV.)
AND:
STATE OF KARNATAKA BY
BELUR POLICE.
(REPRESENTED BY PUBLIC PROSECUTOR)
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
2
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
08.10.2012 PASSED BY THE ADDL. S.J., HASSAN IN
S.C.NO.158/2010 CONVICTING THE APPELLANTS/
ACCUSED FOR THE OFFENCE P/U/S 201 AND 302 R/W
34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, BUDIHAL R.B., J., DELIVERED THE
FOLLOWING:
JUDGMENT
This is an appeal preferred by the appellants- accused Nos.1 and 2 being aggrieved by the judgment and order of conviction and sentence dated 08.10.2012 passed by Additional Sessions Court, Hassan in S.C.No.158/2010. By the said judgment, the appellants herein have been convicted for the offence punishable under Sections 302 and 201 read with Section 34 of IPC.
2. Brief facts of the prosecution case as per the averments made in the complaint and as pleaded in the appeal memorandum are that, on 07.03.2010 at about 9.00 a.m., when the complainant was going towards his land, he found a dead body which was floating in the Yagachi Canal, which was coming from Belur side and he pulled the dead body from the Canal and found that 3 deceased had sustained injuries on forehead and all over the body. He presumed that someone has committed murder and thrown the body into the Canal. Thereafter, he went to police station and lodged complaint, based on which crime came to be registered.
3. After conducting investigation, the Investigating Officer filed chargesheet against the accused persons for the offence punishable under Sections 302, 201 and 109 read with Section 34 of IPC.
4. After hearing both the sides, learned Sessions Judge framed charges against accused persons for the offence punishable under Sections 109 and 302 read with Section 34 of IPC as against accused No.2 and also for the charge under Section 302 read with Section 34 of IPC as against accused Nos.1 and 3. When the charge was read over and explained to accused persons, they denied the charges and claimed to be tried. Accordingly, their plea was also recorded and matter was set on for trial.
5. The prosecution, in support of its case, examined in all 19 witnesses and got marked documents 4 as Exs.P1 to P35 and also got marked Material Objects as M.O Nos.1 to 6. Then accused persons were examined under Section 313 of Cr.P.C and their statement came to be recorded. On the side of the defence, no witnesses were examined nor any documents were marked. During the pendency of the case for trial, accused No.3 expired. Therefore, trial was conducted only as against accused Nos.1 and 2 as the proceedings abated against accused No.3.
6. After hearing the arguments of both the sides and after considering the materials, both oral and documentary, learned Sessions Judge held that prosecution proved the case beyond all reasonable doubt against accused Nos.1 and 2 and convicted them who are the appellants herein.
7. Being aggrieved by the judgment and order of conviction and sentence imposed and also challenging the legality and correctness of the said judgment, on the grounds as mentioned at ground Nos.5 to 10 of the appeal memorandum, the appellants are before this Court. 5
8. We have heard the arguments of the learned counsel for appellants-accused Nos.1 and 2 so also learned Additional SPP for respondent-state.
9. Learned counsel for the appellants, during the course of arguments, made submission that looking to the entire prosecution material, absolutely there is no material to show the involvement of appellants-accused Nos.1 and 2 except for the confession of accused No.3 under Section 164 Cr.P.C said to have been recorded before the learned Magistrate Court, wherein, he has stated about the involvement of appellants-accused Nos.1 and 2. It is his submission firstly, the recording of statement under Section 164 Cr.P.C, itself is not in accordance with the said provisions and there are so many glaring illegalities committed regarding the procedural aspect. Therefore, learned counsel made submission that the said statement cannot be looked into by this Court which aspect is totally ignored by the learned Sessions Judge while passing judgment. In this connection, learned counsel drew the attention to statement under 164 Cr.P.C and he has also relied upon the judgment of the Hon'ble Apex Court in this 6 regard and submitted that the confession statement cannot be relied upon and because of the said irregularity the whole proceedings under Section 164 of Cr.P.C are vitiated and cannot be looked into by the Court of law. Learned counsel also submitted that in the voluntary statement of accused No.3 he has stated that he has committed alleged offence but, in his confession statement under Section 164 of Cr.P.C, he has deposed that it is other accused persons i.e., accused Nos.1 and 2 who committed the alleged offence and that he was simply present with them. Hence, on this ground also learned counsel made submission that there is no consistency even with regard to the confession alleged to have been made by accused No.3. He further submitted that there is no mention in the CD that accused No.3 made up his mind that he wanted to make such confession statement before the Court. Learned counsel further made submission that it is only the Investigating Officer who prepared the grounds to say that it is accused No.3 who came forward for making such confession statement. Hence, he submitted that even on that ground also, it 7 cannot be looked into. Further the order sheet in the said case, disclosed that the learned Magistrate has not given direction to the Prison Authorities to produce accused No.3 before the Court without the intervention of Investigating Officer, but on the contrary, a direction was given to the investigating Officer himself to bring accused No.3 and to produce him before the Court. Hence, learned counsel submitted that this procedure followed by learned Magistrate for recording the confession statement of accused No.3 is also not in accordance with law. Referring to other materials, learned counsel made submission that it is the case of the prosecution that accused No.1 made voluntary statement and he took the panch and the police nearby Yagachi Canal. Learned counsel submitted that the stone is said to have been seized in presence of the panch witnesses at the instance of accused No.1 but there were no blood stains on the said stone.However, the FSL Report goes to show that there were blood stains on the stone. Hence, he submitted that this also gives rise to reasonable doubt in the mind of the Court regarding blood stains found by FSL Authorities. He also further 8 submitted that except these materials, there are no other supporting materials on the side of prosecution case. Inspite of that, learned Sessions Judge proceeded to convict the accused persons. He wrongly read the evidence and wrongly convicted the appellants-accused Nos.1 and
2. It is also his submission that in so far as confession statement of accused No.3 is concerned, after his demise during the course of trial, learned Sessions Judge has also observed in the judgment that it becomes a dying declaration. In this connection also learned counsel for appellant relied upon the judgment of the Hon'ble Apex Court and made submission that when the statement is not with regard to his death, the statement with regard to the death of the deceased in this case cannot be considered as a dying declaration. Hence, he submitted that looking to the entire materials placed on record, the prosecution utterly fails to prove any of the charges against appellants-accused Nos.1 and 2. It is also his submission that there was no opportunity given for the defence to cross-examine accused No.3 in connection with the confession statement alleged to have been made under 9 Section 164 Cr.P.C. Hence, he prays to allow the appeal by setting aside the judgment and order of conviction and sentence passed by the Court below and acquit appellants-accused Nos.1 and 2 of all the charges. In support of his contention, learned counsel for the appellant relied upon the following judgments:
1. Vinay D Nagar vs. State of Rajasthan reported in (2008) 5 SCC 597.
2. Rabindra Kumar Pal alias Dara Singh vs. Republic of India reported in (2011) 2 SCC 490.
3. R.Shaji vs. State of Kerala reported in (2013) 14 SCC 266.
4. Babu s/o Raveendran vs. Babu s/o Bahuleyan and Anr. reported in (2003) 7 SCC 37.
5. Palvinder Kaur vs. The State of Punjab reported in AIR 1952 SC 354.
6. Lokeman Shah and Anr. vs. State of W.B reported in (2001) 5 SCC 235.
7. Aloke Nath Dutta and Ors. vs. State of West Bengal reported in (2007) 12 SCC 230.
8. Pancho vs. State of Haryana reported in (2011) 10 SCC 165.
9. State of Madhya Pradesh vs. Dayaram S/o Hemraj reported in 1981 (Supp) SCC 14.
10
10. Per contra, learned Additional SPP, during the course of arguments, made submission that the confession statement made by accused No.3 is in accordance with law and that after the death of accused No.3, same can be used as dying declaration as per Section 32(3) of the Indian Evidence Act. In this connection, he also relied upon the decision of the Hon'ble Apex Court rendered in the case of Haroon Haji Abdulla vs. State of Maharashtra dated 14.12.1967. Further as to the merits of the case, learned Additional SPP submitted that there is a voluntary statement made by accused No.1 and at his instance, the stone is seized from the place of offence in the presence of panch witnesses and he has also produced two wheeler vehicle from his house and also mobile phone. Hence, it is his contention that even looking to the FSL Report regarding blood stains on the stone as well as two other materials i.e., clothes of the deceased, the FSL Authorities have mentioned that the blood stains found on all the articles are of human blood belonging to 'O' Blood group. Hence, he submitted that even if these materials are looked into, it clearly goes to 11 show the involvement of accused Nos.1 and 2 also. Hence, it is his contention that the entire materials, both oral and documentary have been property considered by learned Sessions Judge in coming to said conclusion and there is no merit in the said appeal and prayed to dismiss the appeal and to confirm the judgment and order of conviction and sentence passed by learned Sessions Judge.
11. We have perused the grounds in the appeal memorandum, judgment and order of conviction and sentence passed by Court below, oral evidence of prosecution witnesses PW1 to PW19 and the documents Exs.P1 to P35. We have also considered the submissions made by learned counsel on both the sides at the Bar and perused the judgments and principles enunciated which are referred above.
12. The first information in this case is by PW1, who is the person owning a land near by Yagachi Canal, when he noticed that a dead body was floating in the Canal water, then with the help of a stick he stopped it. 12 Then he informed the Police by lodging first information as per Ex.P1. On the basis of the same, FIR came to be registered in Crime No.62/2010 for the offences punishable under Section 302 and 201 of IPC which is registered against unknown persons. But during the course of investigation, all the appellants-accused Nos.1 to 3 were arrested on 15.05.2010 and were produced before the Court. The prosecution case is that accused No.3 gave a voluntary statement before the learned Magistrate who said to have recorded the statement under Section 164 of Cr.P.C, he is examined as PW12. We have perused the evidence of PW12, who is a Senior Civil Judge, Holenarasipura, wherein he has deposed in his evidence that he has recorded the statement of accused No.3. He further deposed that as his chamber was small, not spacious enough, he recorded the confession statement in the open Court. Before recording the confession statement of accused No.3, he sent all the Police persons out of the Court hall. Then, the doors of the Court Hall were closed and he himself wrote the contents of the confession statement. He also deposed that even in the computer he 13 got it typed. He read over the statement to accused No.3 and obtained his signature. The statement is of six pages. Same was marked as Ex.P13 and his signature is at Ex.P13(a). The witnesses identified the signature of accused No.3 as per Ex.P13(b). Accused No.3 has given statement on his own volition without being subjected to any sort of pressure. In that connection, he made a shara in the statement. In the cross-examination by the defence, he deposed that on 15.07.2010, he has enquired accused No.3 whether there was any pressure, threat or there was any inducement or any sort of assurance given to him in that connection but he has not recorded in the order sheet and even in the confession statement but has mentioned only as 'consequences'. On 16.07.2010, with regard to his statement the Police who produced accused No.3 before the Court were sent out of the Court and of the closing of the door of the Court Hall, he has not mentioned in the order sheet. On 15.07.2010 when accused No.3 was ready to give confession statement, he has not mentioned in the order sheet about the same. This is the first time he has recorded such confessionary statement. He put some 14 questions before recording confession statement and he asked those question for about 10 minutes. The first five questions were in order to test whether the accused is telling truth and it is a voluntary statement. He has not mentioned in the voluntary statement that he has enquired accused No.3 for what reason he came forward to make the said voluntary statement. He denied the suggestion that while recording confession statement he ought to have given direction to the Prison Authorities to produce accused No.3 and not to the Police Officers. Even he has deposed that while putting five questions to accused No.3, he has not disclosed his identity that he is a Judge. In his voluntary statement, accused No.3 deposed that he has not committed the murder, accused No.1 has committed it, but he was also along with him. Therefore, he came to the conclusion that confession statement given by accused is of the truth. There was no difficulty for him to mention about he sending the Police out of the Court Hall, either in the ordersheet or even in the confession statement. In this connection, we have perused the decisions relied upon by learned counsel for 15 appellants. First decision in that regard is of the Hon'ble Apex Court reported in 1981 (supplementary) SCC 14 wherein, the Hon'ble Apex Court has laid down the proposition as under:
"Criminal Procedure Code, 1973 - Section 164 - Confession recorded by the magistrate in question-answer form by putting leading questions to and cross-examining the accused and recording whatever accused stated in answer, held, must be rejected."
In another decision reported in (2011) 2 SCC 490 synopsis-I, Hon'ble Apex Court laid down the proposition as under:
"I. Criminal Procedure Code, 1973 - S. 164 - Confession - Recording of - Compliance with procedure under - Principles, stated - Criminal Trial - Confession
- Confession of accused - Evidence Act, 1872, S. 30, held as under:
The following principles emerge with regard to recording of confessional statements under Section164 CrPC:
"(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.16
(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii) Non-compliance of Section 164 Cr.P.C.
goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
17
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.
(x) Confession of a co-accused is a weak type of evidence.
(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement."
13. Looking to these decisions of the Hon'ble Apex Court and coming to the factual matrix involved in this case, admittedly even according to the case of the prosecution, the confession statement which is marked as Ex.P13 is in the question-answer form. The learned Magistrate goes on putting the question to accused No.3 and to those questions accused No.3 goes on answering. 18 Therefore, it cannot be said that it is a statement made by accused No.3. If at all it is to be the statement of accused, there is no question of putting the questions by the Court eliciting information to such questions from the accused. Apart from that, regarding the procedural aspect is concerned, we have perused the decision of the Hon'ble Apex Court which is referred above. The confession statement goes to show that even oath was administered to accused No.3. The provisions under Section 164 (5) of Cr.P.C reads a under:
"(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded."
14. Therefore, it goes to show that so far as the accused, whenever he is making confession statement is not supposed to swear and administering of oath is not a requirement as per the said provision. But in the case on 19 hand, looking to evidence of PW12, learned Civil Judge who recorded the statement and also looking to Ex.P13- confession statement, clearly goes to show that oath was administered to accused No.3 which is against the provisions of Section 164(5) of Cr.P.C. Considering these aspects of the matter we are of the opinion that learned Magistrate has not followed the correct procedure in recording the confession statement of accused No.3.
15. Apart from that, we noticed that the learned Magistrate has not given direction to Prison Authorities to produce accused No.3 for the purpose of recording confession statement but the order sheet in the case dated 12.07.2010 goes to show that learned Magistrate directed the Police to produce accused No.3 before the Court and accordingly, accused No.3 was brought and produced before the Court by Police and not by Prison Authorities. The whole object is to see that there should not be any sort of influence by the Police on accused person who came forward to give confession statement and to inform that it was his voluntary statement without any sort of pressure, inducement or threat by the Police. When that is 20 so, giving a direction to Police to bring and produce accused No.3 before the Court goes to defeat the very purpose. Therefore, even that procedure adopted by the learned Magistrate is not in accordance with the provisions of Cr.P.C. Therefore, in view of these legal infirmities in recording the confession statement of accused No.3, learned counsel for appellants is justified in making submission that the said confession statement cannot be looked into by the Court. Accordingly, we are of the opinion that learned Sessions Judge ought not to have relied upon confession statement at Ex.P13.
16. With regard to the evidence of other witnesses in the case i.e., PWs.1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15 and 16 they all turned hostile and did not support the prosecution case. No doubt after treating them hostile learned Public Prosecutor cross-examined these witnesses. But even looking to the cross-examination portion of these witnesses, nothing has been elucidated from their mouth so as to believe the story of the prosecution that in their presence alleged recovery has 21 been conducted and the panchnamas were drawn in their presence.
17. Though it is the case of the prosecution that accused No.1 gave voluntary statement and at his instance the stone and one two wheeler moped has been seized in the presence of panch witnesses, but again here the panch witnesses did not support the recovery in their presence of the stone as well as two-wheeler moped. No doubt the Investigation Officer deposed in his evidence about these things. We have also perused the FSL Report at Ex.P35 and oral evidence of PW19 who is the Assistant Director of FSL, Bengaluru. Wherein he has stated that the seal on the articles which were sent were in tact. Item No.1- knicker; Item No.2 - One shirt; Item No.3 - one stone, when he examined these articles he found the blood stains on all the articles. It was human blood which belonged to 'O' group and he has given Report as per Ex.P35. Even if it is taken that there were blood stains on all the three articles as spoken by PW-19, but admittedly even according to the prosecution, there are no eye witnesses to the case of the prosecution and it rests on 22 circumstantial evidence. Therefore, even if it is taken to be true that there were blood stains found on all the three articles, but that only circumstance is not sufficient for this Court to come to the conclusion that prosecution proved its case beyond all reasonable doubt. In case of circumstantial evidence, the circumstance brought by the prosecution against the accused has to be proved to establish the chain of the said circumstances and that would exclusively and inevitably suggest the guilt of the accused and there are no circumstances which are consistent with the innocence of the accused person or the circumstances are established in such a manner so as to form complete chain of circumstance, then only the Court can rely upon such circumstantial evidence to come to the conclusion that the prosecution prove its case beyond all reasonable doubt.
18. With regard to the statement of accused No.3 recorded under Section 164 of Cr.P.C, learned Sessions Judge in his judgment held that it is a dying declaration and it is a relevant piece of evidence under Section 32 of the Indian Evidence Act. In this connection, learned 23 counsel relied upon the judgment of the Hon'ble Apex Court of Privy Council reported in AIR 1952 SC 354, paragraph No.16 of the said judgment reads as under:
"16. The statement read as a whole is of an exculpatory character. It does not suggest or prove the commission of any offence under the Penal Code by any one. It not only exculpates her from the commission of an offence but also exculpates Mohinderpal. It states that the death of Jaspal was accidental. The statement does not amount to a confession and is thus inadmissible in evidence. It was observed by their Lordship of the Privy Council in Pakala Narayanaswami v. Emperor, A. I. R. 1939 P. C. 47, that the word "confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self-
exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the 24 offence alleged to be confessed. In this view of the law the High court was in error in treating the statement of Palvinder as the most important piece of evidence in support of the charge under S. 201, Penal Code. The learned Judges in one part of their judgment observed that strictly speaking exculpatory statements in which the prisoner denies her guilt cannot be regarded as confessions, but went on to say that such statements are often used as circumstantial evidence of guilty consciousness by showing them to be false and fabricated. With great respect we have not been able to follow the meaning of these observations and the learned counsel appearing at the Bar for the prosecution was unable to explain what these words exactly indicated. The statement not being a confession and being of an exculpatory nature in which the guilt had been denied by prisoner, it could not be used as evidence in the case to prove her guilt."
19. The Hon'ble Apex Court in the said decision made it clear that such statement cannot be construed as dying declaration. Therefore, learned Sessions Judge is not correct in holding that statement made by accused 25 No.3 becomes a dying declaration after the demise of accused No.3.
20. Apart from that, the learned counsel for appellant also relied upon the judgment of the Hon'ble Apex Court reported in (2011) 2 SCC 490, paragraph No.62 reads as under:
"62. In State vs. Nalini the following paragraphs are relevant which read as under: (SCC pp. 307-08, paras 96-99) "96. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act? While considering that aspect we have to bear in mind that any confession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used.26
97. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co- accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the non obstante clause contained in Section 15(1) of TADA, under what provision can a confession of one accused be used against another co- accused at all? It must be remembered that Section 15(1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a co- accused, abettor or conspirator tried in the same case.27
98. Sir John Beaumont speaking for five Law Lords of the Privy Council in Bhuboni Sahu v. R.(AIR 1949 PC 257) had made the following observations:(IA pp. 155-56) '...Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of `evidence' contained in Section 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.' 28
99. The above observations had since been treated as the approved and established position regarding confession vis-a-vis another co-accused. Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P (AIR 1952 SC 159) had reiterated the same principle after quoting the aforesaid observations. A Constitution Bench of this Court has followed it in Haricharan Kurmi v. State of Bihar (AIR 1964 SC 1184)."
21. Therefore, even according to the principles enunciated in these decisions it is observed by their lordships that confession statement is a weak type of evidence and it is to be corroborated from some other independent evidence. But as we have observed, referring to the prosecution material, there are no such independent material produced by the prosecution apart from the confession statement at Ex.P13. It is not in accordance with law and cannot be looked into and it has to be rejected from consideration. The learned Sessions Judge totally ignored these important aspects of the case and wrongly read the material and relied upon such material i.e., confession statement of accused No.3 and 29 comes to the conclusion that prosecution has proved the case beyond reasonable doubt.
22. The judgment and order of conviction and sentence passed by the Court below is not in accordance with the materials placed on record, both oral and documentary. Therefore, judgment and order of conviction is not sustainable in law. Hence, appellants have made out a case and we are also of the opinion that there are valid and justifiable reasons to interfere with the judgment and order of conviction and sentence passed by the Trial Court.
23. Accordingly, appeal is allowed. The judgment and order of conviction and sentence passed by the Additional Sessions Judge, Hassan in S.C.No.158/2010 dated 08.10.2012 is hereby set aside. Appellants-accused Nos.1 and 2 are acquitted from all the charges leveled against them. Appellants-accused Nos.1 and 2 shall be released forthwith, if their detention is not required in any other case.
30
Communicate the operative portion of the order to the Central Prison, Parappana Agrahara, Bengaluru and the District Prison, Tumkuru, forthwith.
Sd/-
JUDGE Sd/-
JUDGE dn/-