IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 15TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.822 OF 2012 CONNECTED WITH CRIMINAL APPEAL NO.934 OF 2012 CONNECTED WITH CRIMINAL APPEAL NO.1143 OF 2012 CRIMINAL APPEAL NO.822 OF 2012 BETWEEN AFSAR @ AFSAR KHAN, S/O LATE BABA, AGED ABOUT 26 YEARS, NEELAKANTANAGARA, NANJANGUD TOWN, MYSURU DISTRICT.
(NOW IN JUDICIAL CUSTODY CENTRAL PRISON, MYSURU) (By Sri : HASHMATH PASHA, ADVOCATE) ... APPELLANT AND STATE OF KARNATAKA, BY NANJANGUD RURAL POLICE, NANJANGUD, MYSURU DISTRICT.
... RESPONDENT (REPRESENTED BY SRI VIJAYA KUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDERS OF CONVICTION AND SENTENCES DATED 30.04.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-IV, MYSURU IN S.C.NO.215 OF 2009 AND S.C.NO.282 OF 2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 201 R/W SEC.34 OF IPC. THE APPELLANT/ ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR LIFE AND ALSO TO PAY A FINE OF RS. 10,000/- AND IN DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 3 YEARS AND PAY A FINE OF RS.2,000/- AND IN DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 4 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 READ WITH SECTION 34 OF IPC. BOTH THE SENTENCES SHALL RUN CONCURRENTLY.
***** CRIMINAL APPEAL NO.934 OF 2012 BETWEEN RAFIQ @ RAFI, S/O DASTAGIR, AGED ABOUT 26 YEARS BUSINESS, R/O GAALIPURA EXTENSION, CHAMARAJANAGARA.
(By Sri: B.LETHIF, ADVOCATE) AND THE STATE BY NANJANGUD RURAL POLICE (By Sri : VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR) ... APPELLANT ... RESPONDENT THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE OF ORDER OF CONVICTION DATED 30.4.2012 PASSED BY THE FAST TRACK COURT-IV, MYSURU IN S.C. No.282 OF 2010 - CONVICTING THE APPELLANT/ ACCUSED-2(IN SC.No.282 OF 2010) FOR OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 201 READ WITH SECTION 34 OF IPC. APPELLANT/ACCUSED-2 IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR LIFE AND ALSO TO PAY A FINE OF RS.10,000/- AND IN DEFAULT OF PAYMENT OF FINE, HE IS TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF ONE YEAR, FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF IPC. APPELLANT/ACCUSED-2 IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 3 YEARS AND ALSO TO PAY A FINE OF RS.2,000/- AND IN DEFAULT OF PAYMENT OF FINE, HE IS TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF FOUR MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 READ WITH SECTION 34 OF IPC. BOTH SENTENCES SHALL RUN CONCURRENTLY.
***** CRIMINAL APPEAL No.1143 OF 2012 BETWEEN STATE BY NANJANAGUDU RURAL POLICE ... APPELLANT (By Sri : VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR) AND 1. REHAMATH @ REHAMATHULLA, S/O ATHULLA, AGED ABOUT 28 YEARS, TENANT UNDER C.O.
MASTER HOUSE, NEAR WATER TANK, CHAMARAJANAGAR TOWN-571313 2. ANSARPASHA @ ANSAR, S/O ABDUL WAZID, AGED ABOUT 34 YEARS, NO. 216, 19TH CROSS, BEHIND QUBA MASJID, SHANTHINAGAR, MYSURU-570001.
3. SYED ADIL @ ADIL, S/O LATE SYED FAYAZ, AGED ABOUT 35 YEARS, NO.2444, 4TH, CROSS, SHIVANNA CIRCLE, I STAGE, RAJEEVNAGARA, MYSURU-570 001.
(By Sri : B.LETHIF, ADVOCATE FOR R1 ... RESPONDENTS Sri : M.H.PRAKASH, ADVOCATE FOR R2 AND R3) THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1) AND (3) CODE OF CRIMINAL PROCEDURE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 30.04.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-IV, MYSURU IN S.C.NO.215 OF 2009 - ACQUITTING THE RESPONDENTS/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 201 READ WITH SECTION 34 OF IPC. THE SPP/STATE PRAYS THAT THE ABOVE ORDER MAY BE SET ASIDE.
***** THESE APPEALS COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA, J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT These three appeals are arising out of the common judgment dated 30.04.2012 passed by the Fast Track Court- IV, Mysuru in S.C.No.215 of 2009 and S.C.No.282 of 2010.
2. By the impugned judgment, accused Nos.1 and 2 who are the appellants in Crl.A.No.822 of 2012 and Crl.A.No.934 of 2012 respectively are convicted for the offence under Sections 302 and 201 read with Section 34 of Indian Penal Code. They are sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of one year for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and simple imprisonment for three years and a fine of Rs.2,000/-, in default of payment of fine, to undergo simple imprisonment for a period of four months for the offence punishable under Section 201 read with Section 34 Indian Penal Code.
3. Accused Nos. 3, 4 and 5 are acquitted of all the charges. As against their acquittal, the State has preferred appeal in Crl.A.No.1143 of 2012.
4. All these appeals are heard together and are disposed off by this common judgment.
5. The case of the prosecution is that deceased Humayun and accused Nos.1 and 2 were habitual offenders. They were involved in various instances of theft and chain snatching. The deceased is alleged to have sold the stolen properties retained with him without the knowledge of accused Nos.1 to 3 and he failed to give them their share. He had run away to Kerala. Hence with intent to commit his murder, accused Nos.1 to 3 proceeded to Kerala in a stolen Tata Sumo vehicle bearing registration No.KA-01/A 538. They took the deceased with them and returned to Bangalore in the said Tata Sumo vehicle. On the way, accused No.3 got down at Gundlupet. Accused Nos.1 and 2 took the deceased to Mysuru. They had drinks and meals together and thereafter they took the deceased to the land bearing Sy.No.51 situated near Kabini Baladande, Deveerammanahally village, Nanjangud Taluk. They purchased diesel in a can from a petrol bunk. In the night, they assaulted the deceased with a long on his head. They rolled the dead body in a mat and took it to another place near Kabini Baladande nale near Chamarajanagar road in the land bearing Sy.No.230 and dumped the dead body in a ditch, doused it with diesel and burnt the dead body.
According to the prosecution the murder was committed in between 9 p.m. and 11 p.m. on 03.03.2009.
6. Things having stood thus, PW.1, the Assistant Commissioner of Police of CCB, Mysuru who was investigating Crime No.49 of 2009 of Kuvempu Nagar police station arrested accused Nos.1 and 3 on 15.04.2009. Based on the voluntary statement of accused Nos.1 and 3, PW.1 came to know the involvement of accused Nos. 1 to 3 in the murder of deceased. He conducted the Spot Mahazar as shown by accused No.1 pursuant to his voluntary disclosures and collected incriminating materials from the spot of murder. Thereafter, at the instance of accused No.1 recovered the burnt skull, burnt bones, burnt pieces of cloths and forwarded them for DNA examination. The spare parts of the Tata Sumo vehicle used for commission of offence were also recovered. Accused Nos. 4 and 5 to whom the said vehicle was sold by accused Nos.1 to 3 were also implicated in the offence.
7. Accused No.2 surrendered before the Magistrate on 08.12.2010. He was taken to police custody on the same day. Based on his voluntary statement, mahazars of the spots shown by him were conducted. On completing the investigation, charge sheet came to be laid against accused Nos. 1 to 5 under Sections 302, 201 read with Section 34 of IPC.
8. All the accused persons faced trial. Charges were framed against accused Nos.1 to 3 for the offences punishable under Sections 302 and 201 read with Section 34 IPC. Whereas, accused Nos.1, 2, 4 and 5 were charged under Section 201 read with Section of 34 IPC.
9. The accused persons denied the charges. In order to prove its case, the prosecution examined as many as 32 witnesses as PW.1 to PW.32 and produced Ex.P1 to Ex.P29 and the material objects at M.O.1 to M.O.18. All the accused took up the defence of total denial and did not choose to enter into any specific defence.
10. On hearing the parties and on consideration of the material produced by the prosecution, by the impugned judgment, the Trial Court convicted accused Nos. 1 and 2 for the offences punishable under Sections 302 and 201 read with Section 34 of IPC. Whereas, accused Nos. 3, 4 and 5 were acquitted of all the charges.
11. Feeling aggrieved by the impugned judgment, the convicted appellants have preferred the above appeals, whereas, the State has challenged the acquittal of accused Nos. 3 to 5 by preferring a separate appeal in Crl.A.No.1143 of 2012.
12. We have heard Sri Hashmath Pasha, learned counsel appearing for accused no.1; Sri.B.Lethif, learned advocate appearing for accused Nos.2 and 3 and Sri Prakash M.H., learned counsel appearing for accused Nos. 4 and 5. We have also heard Sri.Vijayakumar Majage, learned Additional State Public Prosecutor on behalf of the State and have examined the records.
13. Amongst the 32 witnesses, the panch witnesses namely PW.4 to P.W.12 and P.W.30 examined by the prosecution in proof of various panchnamas namely Exs.P7, P9, P10 and P11 have been treated hostile. Likewise, PW.17, the Receptionist of Caravan Hotel who has been examined to speak to the fact that accused Nos.1 and 2 stayed in the lodge on the date of incident; PW.18 the owner of the land comprised in Sy.No.230; PW.21, the employer of petrol bunk from where the accused are stated to have purchased diesel on the date of the incident and PW.29, a tea vendor in Kerala who has been examined to speak to the fact that he had seen the deceased and accused Nos. 1 to 3 in Kerala have failed to support the prosecution and they have been treated as hostile. The other witnesses examined by the prosecution have substantially supported the case of the prosecution. It may be necessary to consider the evidence of these witnesses so as to appreciate the contentions urged by the respective counsel in the above appeals.
14.(a) PW.1 was the ACP of CCB, Mysuru. This witness has stated in his evidence that he took over the investigation in Crime No.49 of 2009. On 15.4.2009 he deputed his staff headed by PW.22–Jayasheelan to apprehend the accused involved in the said crime. On the same day PW.22 produced before him accused Nos. 1 and 3 along with a motor cycle. Accused No.1 was searched in the presence of the panchas. He was found with 30 gms of gold karimani sara in his possession. The said gold chain as well as the motor cycle were seized. Thereafter, he recorded the voluntary statement of accused Nos.1 and 3. Both these witnesses disclosed their involvement in the murder of the deceased Humayun and volunteered to show the places where the deceased was murdered as well as the place where they burnt his dead body. Accused Nos. 1 and 3 also volunteered to show the person to whom they sold the Tata Sumo vehicle in which the deceased was brought from Kerala to the spot of offence.
PW.1 further deposed that he made a requisition to PW.28, the Medical Officer of Government Hospital, Nanjangud to assist in the investigation. Accused Nos. 1 and 3 led him, panchas and the photographer to Deveerammanahally. They took PW.1 and his team on the left side near Kabini canal. The vehicle was parked at a distance of about 80 feet. After getting down from the vehicle, accused No.1 showed the spot where the deceased was murdered. They found empty cigarette packet, match box and three beer bottles at the spot. The said articles as well as the blood stained mud and sample mud from the spot of offence were seized. Thereafter, accused No.1 showed the place where they had hidden a long and chopper and produced them from underneath of a neem tree. Both these weapons were stained with blood. From there, accused No.1 took them to a further distance of about 2 kms on the left side and after taking the vehicle to a distance of two furlong, showed a ditch where the dead body was burnt. In the said ditch, burnt skull, burnt bone pieces, burnt cloths were found. The Medical Officer identified them as human skeletal remains. Thereafter, accused Nos.1 showed the diesel can used for carrying diesel. All these articles were packed and seized. Accused Nos. 1 and 3 also volunteered to show the owners namely accused Nos. 4 and 5 to whom the Tata Sumo vehicle was sold. In this regard, a mahazar was drawn as per Ex.P27. The first part of the said mahazar was prepared between 2 p.m. to 4.30 p.m. and the second part thereof was prepared between 5.30 pm and 6.30 p.m. on 16.04.2009.
PW.1 further deposed that on 17.04.2009, accused Nos. 4 and 5 were produced before him. On their interrogation, accused Nos. 4 and 5 informed him that they had dismantled the vehicle and parts thereof were sold to a scrap shop and offered to show the place where the dismantled parts were sold. Accordingly, PW.1 and the panchas recovered the dismantled spare parts of the Tata Sumo vehicle under mahazar Ex.P3. On 28.04.2009, he sent the seized articles to FSL. Through this witness, the prosecution marked the rough sketch prepared by him showing the spot of murder as well as the place where the dead body was burnt. The same came to be marked as Ex.P4. The photographs of the dismantled parts of Tata Sumo vehicle were marked as Ex.P25 (7 positive photos).
In the cross-examination, except suggesting to PW.1 that he did not conduct the investigation and did not draw up the mahazars as stated in his chief-examination, the testimony of PW.1 with regard to the arrest of accused Nos. 1 to 3, their identification, the panchanamas prepared at the instance of accused Nos.1 and 2 pursuant to their voluntary statement has not been discredited in the cross-examination. On behalf of accused Nos. 4 and 5 it is elicited that PW.1 did not collect any documents to show that the vehicle in question was owned by accused Nos. 4 and 5 at the relevant time. It is also elicited that he did not collect any document to show that the scrap shop belonged to one Chand Pasha and the spare parts were sold to him by accused Nos.4 and 5. He also admitted in the cross-examination that he did not collect the RC book, tax card and insurance documents relating to the said Tata sumo vehicle. The cross-examination conducted on behalf of accused No.3 pertains only to the previous conviction of the accused. The material evidence given by PW.1 with regard to recovery at the instance of accused No.1 has not been challenged or falsified in the cross-examination. However, it is elicited that the spot where the murder was said to have been committed was an agricultural land and it was left fallow.
(b). PW.2 is not related to the case in question. She has been examined only to prove the fact that she had lodged a complaint regarding snatching of her chain and the same was recovered from the possession of accused Nos.1 and 3. She has identified accused Nos.1 and 3 as the persons from whom the said chain was recovered.
(c). PW.3 is a panch witness to the mahazar Ex.P.5 whereunder M.Os.1 to 17 were seized. It also needs to be mentioned that the very same mahazar is marked as Ex.P27. According to PW.3, on 16.04.2009, on the request of police he agreed to assist in the investigation. He was asked to come to the police station. Accused Nos.1 and 3 were in the custody of the police. In his presence, accused No.1 volunteered to show the place where he and other accused murdered Humayun and burnt his dead body. Accordingly, accused Nos.1 and 3 took them to Deveerammanahally near a channel and from there they took them to a land. Accused No.1 showed the place where the deceased was murdered. In the said spot there was a match box, empty cigarette packet, three beer bottles, a long and a chopper. The soil was stained with blood. As shown by the accused, the police prepared mahazar and seized the above articles including the blood stained and sample mud from the spot as per Ex.P5. Thereafter, accused No.1 disclosed that from the said spot they carried the dead body in a mat and took them to a further distance of about 1 Km near a quarry and showed a ditch where the dead body was burnt. Accused No.1 also produced the can in which the diesel was carried by them. At the said spot there was a skull with lower jaw, burnt cloths and some burnt bones. The mud was also found burnt at the said spot. In the presence of the Doctor all these articles were seized and a mahazar was drawn as per Ex.P5. On the following day, accused No.1 took them to the scrap shop near Christian Cemetery and showed accused Nos. 4 and 5 stating that the chassis, stepney, battery, spring of the Tata Sumo vehicle were sold to accused Nos.4 and 5. A mahazar was also drawn in this regard as per Ex.P7. This witness identified the photographs of the spare parts namely Ex.P25 containing seven positive photographs and their negatives. Nothing worthwhile has been elicited in the cross- examination of this witness to disbelieve his evidence regarding his participation in the preparation of mahazars Ex.P5(Ex.P27) and Ex.P7 and the seizure of articles mentioned therein. He has reiterated that his signatures were taken at both the places where the mahazars were drawn. It is further elicited that when they went to the spot, no other persons were present there.
(d). PW.13 is the mother of the deceased. This witness has stated that various theft cases were registered against her deceased son in Nanjangud court. He was involved in various thefts and gradually he developed friendship with accused No.1. She identified accused No.1 and further deposed that accused Nos. 1 to 3 as well as the deceased were roaming about together. On one occasion accused No.1 had come to her house and informed her that he has paid money to an Advocate to contest the cases filed against her son. She further deposed that accused Nos. 1 and 2 had come in search of the deceased stating that they had left the stolen gold ornaments in his possession. When they did not find the deceased they challenged that if they find him, they will not leave him alive. After about 1½ months, she came to know through her elder brother that accused No.1 committed the murder of her son. The statements made by this witness regarding the acquaintance between the deceased and accused Nos. 1 to 3 and their involvement in various theft cases has not at all been disputed in the cross- examination.
(e). PW.14 is the elder brother of PW.13. He is a circumstantial witness and nothing material has been elicited from this witness in support of the prosecution case.
(f). PW.15 is a relative of the deceased. He has also stated that the accused and the deceased were involved in various theft cases and he had advised them on number of occasions to mend their ways. When it was suggested to this witness that he could have informed these matters to the police, PW.15 specifically answered that the police were very well aware of the involvement of the accused in these cases.
(g). PW.16 is the owner of Tata Sumo vehicle bearing registration No.KA-01/A 538. He deposed that the said vehicle was stolen about two years prior to the date of his examination in the court and in that regard he had lodged a complaint before T.Narasipura police. He further stated that CCB police, Mysuru had shown him the dismantled parts of his Tata Sumo vehicle. But since he was required to produce the same during trial, he did not take release of the spare parts from the court. He has not been cross-examined.
(h). PW.19 is the Village Accountant of Horalawadi Village at the relevant time. Through this witness the prosecution has marked the RTC extract relating to Sy.No.230 as Ex.P14 and the RTC extract of Sy.No.51 as Ex.P15. Sy.No.230 stands in the name of Government whereas, Sy.No.51 stands in the name of Girijemba wife of T.S.Shashikumar.
(i) PW.20 is the photographer. According to this witness, in the month of April, 2009 on the request of CCB police, he took the photographs of the spot shown by the accused and furnished these photographs and CD to the police. He identified the said video CD marked as M.O.18 and 41 photographs taken by him relating to the spot of occurrence as discussed in Ex.P.27. These photographs are together marked as Ex.P16. He has stated that Ex.P16 – photographs were taken by PW.23. In the cross-examination it is elicited that accused Nos. 1 and 3 were handcuffed when they showed the spot in respect of which he took the photographs and the video. When it was specifically asked to this witness as to who was the first to come to the respective spots as shown in Ex.P27, the witness unequivocally answered that accused Nos. 1 and 3 were the persons who took them to the respective spots. He denied the suggestion that he took the photographs as directed by the police in the police station.
(j). PW.22 is the ASI who was posted at CCB, Mysuru at the relevant time. He apprehended accused Nos. 1 and 3 on 15.04.2009 and produced them before PW.1. This witness has corroborated the testimony of PW.1 stating that at the time of production of accused Nos. 1 and 3, accused No.1 was subjected to personal search and a gold chain was recovered from his possession under a mahazar. He has identified accused Nos. 1 and 3 before the court.
(k). PW.23 is the photographer who took the photographs as per Ex.P16. He has not been cross- examined.
(l). PW.24 was the driver of police vehicle in which accused Nos. 1 and 3 travelled to the spot of murder and other places shown by the respective accused.
(m). PW.25 is a police constable attached to CCB, Mysuru at the relevant time. This witness has stated that on 16.05.2009, from CCB unit all of them went to the spot of murder along with staff and panchas. Accused offered to show the spot where the deceased was murdered. He has further stated that he showed the said spot to the PSI on 3.5.2009 and thereafter on 13.5.2009 and accordingly mahazars were prepared at that spot on 3.5.2009 and 13.5.2009 as per Ex.P11 and Ex.P10 respectively. In the cross-examination it is elicited that on the first occasion when the police team and the accused had gone to the said spot, he did not subscribe any signature at the spot.
(n). PW.26 is the police constable who submitted the FIR to the Magistrate. It is marked as Ex.P18.
(o). PW.27 is the PSI of Kuvempunagar police station who registered crime No.24 of 2009 on the basis of the complaint lodged by PW.2.
(p). PW.28 is the Medical Officer, Government Hospital, Nanjangud. This witness has stated that on 16.04.2009, he received a requisition from PW.1 asking him to assist in the investigation and requested him to come near Mahadevnagar quarry. He has further stated that at the spot he collected the burnt skeletal remains and handed over the same to the police. He identified the same as M.Os.9, 10 and 12 and further stated that burnt mud and sample mud were also collected from the spot and he identified them as M.Os.13, 14, 15 and 16. He further stated that when he handed them over to the police he had sealed them. At the time of sending them to FSL, police have removed the seal for forwarding it to the DNA examination. In the cross- examination it is elicited that PW.1 had personally come to the hospital with the requisition. By the time he went to the spot, police were present. At the spot he found that accused were in the custody of the police.
(q). PW.31 is the Scientific Officer, DNA Centre, Bangalore. This witness has deposed that on 1.8.2009, he received seven sealed articles in connection with Crime No.120 of 2009. The said articles contained one skull with mandible, burnt bone pieces, femur bone, sample blood collected from the individual by name Jiyaullah, sample blood collected from Jabin Taj, sealed packet containing passport size photographs of the deceased. He subjected them to DNA examination (except the photographs) and issued his report as per Ex.P24 to the effect that:
(i) the skull with mandible, burnt bone pieces, femur bone sent in items 1, 2 and 3 are of human in origin and of male sex;
(ii) the DNA profile of the person to whom the skull with mandible, burnt bone pieces and femur bone belongs sent in item nos.1, 2 and 3 is consistent with having come from the offspring of Sri.Jiyaulla S/o Late Sri. Abdul Sathhar whose sample blood is colleted and sent in item no.4 and Smt.Jabin Taj W/o Sri Jiyaulla whose sample blood is collected and sent in item No.5.
In the cross-examination, he denied the suggestion that the burnt bone pieces examined by him did not contain the femur bone. He further denied the suggestion that without conducting any test he issued the report Ex.P24. Except these two suggestions neither the opinion given by PW.24 nor the procedure followed by him in conducting the DNA test has been challenged in the cross–examination.
(r). PW.32 was the CPI of Nanjangud circle at the relevant time. This witness has stated that on 18.4.2009, he took over further investigation in this case. By then, accused Nos. 1, 3 to 5 were already arrested and were in judicial custody. He secured the seized articles relating to this case from PW.1 on 3.5.2009 and incorporated them to the case file. He seized the said articles under a mahazar Ex.P11. He identified the seized articles namely M.Os.1 to 17. This witness has further stated that on 10.5.2009, he sent a requisition to the Medical Officer, Government Hospital, Nanjangud to examine the skeletal remains collected from the spot of occurrence. On 13.5.2009, he drew up the mahazar as per Ex.P9 at the spot as shown by PW.25 – K.S.Ravi. On the same day he drew up Ex.P10 and seized a piece of bone. He has further stated that on 20.05.2009 he received the opinion from PW.28, the Medical Officer of Government Hospital, Nanjangudu and the same came to be marked as Ex.P21. On 30.05.2009 he sent the seized bones and skeletal remains to FSL, Mysuru. On 23.6.2009, accused Nos. 1 and 3 were taken to custody of police and based on their voluntary statement, accused Nos.1 and 3 took them to Kerala where the accused and deceased had food and also showed the place where diesel was purchased. He also visited Hotel Caravan and collected extract of the register and a copy of the receipt maintained in the said hotel. During his further investigation, he collected the opinion dated 07.07.2009 from the Forensic department, Medical College, Mysuru. Thereafter, on 27.7.2009 he obtained the permission of the court and arranged to draw the blood of the parents of the deceased and forwarded the same to DNA examination. On 25.10.2010 he received the FSL report. On 8.12.2010 accused No.2 having surrendered before the court he took him into police custody and recorded his voluntary statement as per Ex.P28 and based on the said voluntary statement drew up the Mahazar Ex.P29 as shown by accused No.2. On 25.02.2011 he submitted the DNA report to the court.
15. On consideration of the above evidence and the material on record, the trial court has held that the prosecution has conclusively proved its case against accused Nos.1 and 2. The trial court was of the view that the circumstances, relating to the recoveries of MOs.1 to 17, consequent to the information supplied by accused No.1, has been duly proved. The identity of the dead body is established through the DNA report. The prosecution has also proved the recovery of the weapons used for the commission of the offence, at the instance of the accused. The motive for committing the offence is also established. Consequently, the trial Court was of the view that the guilt insofar as accused Nos.1 and 2 is proved beyond reasonable doubt, whereas the guilt of accused Nos.2, 4 and 5 has not been established and accordingly acquitted accused Nos.3 to 5, of the charges leveled against them.
16. The learned counsel appearing for accused No.1 has seriously assailed the findings of the court below. He contends that the trial court has recorded the conviction solely on the basis of DNA report. The opinion of the Forensic Expert who conducted the DNA is not conclusive in nature. The report issued by him at Ex.P24 itself indicates that, he considered only the possibility of the person to whom the skull, the mandible and the burnt bone pieces belonged to. He did not furnish any conclusive opinion regarding the identity of the deceased. Further, PW-31 who conducted the DNA test has specifically stated in Ex.P24 that DNA was extracted from a femur bone sent for his analysis. The said femur bone was not seized at the instance of any of the accused. On the other hand, the evidence indicates that the said femur bone was seized at the instance of PW-25, a Police Constable. Since the opinion at Ex.P24 is furnished based on the DNA extracted from this sample, the possibility of the DNA extracted from this femur bone being mixed up with other skeletal remains said to have been recovered at the instance of accused No.1 cannot be ruled out. This vital defect has vitiated the result thereby rendering the opinion furnished by PW-31 totally unreliable. The trial court therefore ought to have discarded Ex.P24.
17. Referring to the evidence of PW-13, the mother of the deceased, the learned counsel has emphasized that her evidence indicates that bones seized by the Investigating Officer were not kept in safe custody and there was inordinate delay in sending these skeletal remains for DNA test, which again throws doubt on the genuineness of the report relied on by the prosecution.
18. Placing reliance on the judgment of the Hon’ble Supreme Court in RANJITHSING BRAHMAJEETSING SHARMA VS. STATE OF MAHARASHTRA AND ANOTHER, AIR 2005 SC 2277, with reference to para Nos.77 and 78, the learned counsel would contend that even if the said DNA report is accepted in evidence, without there being any independent supporting evidence, conviction could not have been based solely on the report of the DNA expert. On this point, the learned counsel has also referred to the decision of Court of Appeal (Criminal Division) reported in 2000 All England Reporter 1469, and the decision rendered by the Gujarat High Court in the case of PREMJIBHAI BACHUBHAI KHASIYA VS. STATE OF GUJARAT AND ANOTHER, 2009 SCC (Online) 12076, and submits that DNA evidence would assume significance only when there is supporting evidence. In the instant case, no supporting evidence having been produced by the prosecution, the conviction recorded solely on the basis of the DNA report is liable to be interfered with by this Court.
19. Questioning the validity and veracity of the recovery evidence relied on by the prosecution, the learned counsel contends that the evidence on record clearly reveals that even before the accused and the Investigating Officer reached the spot of the offence, the Doctor and other Police Officers were already present at the spot, which goes to show that the knowledge of the spot of offence was very much available to the Investigating Officer much before the accused was taken to the said spot. Further, the recovery is seen to have been effected from an open place. Hence, placing reliance on the decisions of the Hon’ble Supreme Court in TRIMBAK VS. THE STATE OF M.P., AIR 1954 SC 39 and VIJENDER VS. STATE OF DELHI, reported in 1997 (6) SCC 171, the learned counsel would submit that the fact which was already discovered could not have been rediscovered at the instance of the accused. As a result, the knowledge of the fact discovered could not be imputed to accused No.1. Consequently, this circumstance also cannot be held against the accused.
20. Insofar as the recovery of Tata Sumo Vehicle is concerned, he contends that this recovery does not incriminate the accused in the offence charged against them. The said recovery at the most would make out an offence punishable under Section-411 of IPC and nothing more. Therefore, the prosecution having failed to produce any reliable evidence in proof of the involvement and complicity of accused No.1 in the murder of the deceased, the trial court was not justified in convicting accused No.1 under Sections- 302 and 201 of IPC and hence he pleads for setting-aside the conviction of accused No.1.
21. The learned counsel appearing for accused No.2 contends that the prosecution has not produced any evidence whatsoever in proof of the involvement of accused No.2 in the alleged offences. The only evidence relied on by the prosecution is the spot mahazar. But the spot alleged to have been shown by accused No.2 was already known to the investigating agency much before his arrest. Even the said mahazar at Ex.P29 is not proved in accordance with law. The panch witnesses to Ex.P29 are not examined. The presence of accused No.2 at the spot of occurrence either on the date of the incident or any time preceding or subsequent thereto is not proved. The prosecution has not produced any material to prove the common intention. Under the said circumstances, the conviction of accused No.2 is wholly illegal and cannot be sustained. He further submits that barring Ex.P29, there is no worthwhile evidence in proof of the guilt of the accused No.2 for the offence under Sections 302 or 201 of IPC. Hence, he pleads for acquittal of accused No.2.
22. Meting the above arguments, the learned Addl.SPP would submit that the prosecution has proved each and every circumstance relied on by it with cogent and convincing evidence in bringing home the guilt of the accused. At the outset, he submits that the contention of the learned defence counsel that the case of the prosecution is rested solely on the DNA report is patently wrong. He points out that in addition to the DNA evidence, the prosecution has relied on the recovery of weapons and other incriminating objects from the spot of offence at the instance of accused No.1, which directly connect accused Nos.1 and 2 to the murder of the deceased. This evidence establishes that the spot of offence was within the knowledge of accused Nos.1 and 2. The mahazar at Ex.P5 (Ex.P27) were conducted at two places namely, the place where the murder was committed and the place where the dead body was burnt. The skull with mandible bone, the burnt bone pieces and the burnt cloth pieces were recovered from the spot where the body was burnt. Subsequently, the femur bone was recovered near about the said spot by PW-25. All these skeletal remains were initially forwarded to the Medical College, Mysuru, Forensic Department for super-imposition. However, by a letter dated 07.07.2009 the medical officer returned the same for the reason that the skull was unfit to super- imposition test. Thereafter, the Investigating Officer forwarded the same to the Forensic Science Lab, Bengaluru for subjecting them to DNA test. Therefore, there was absolutely no delay whatsoever either in forwarding the seized bones to DNA test or in obtaining the report thereof, as contended by the defence counsel.
23. The learned Addl.SPP has further emphasized that the evidence of PW-20 and PW-31 conclusively establishes the identity of the deceased. The opinion furnished by PW-31 is conclusive is nature. Ex.P24, report indicates the method as well as the conclusions arrived at by him. Ex.P24 has not been challenged in the cross- examination and no clarification has been sought from the Doctor with respect to the contentions now sought to be urged by the defence. Hence, the trial court was well-justified in placing reliance on the said report. Regarding the evidentiary value of the DNA report, the learned Addl. SPP has placed reliance on the judgment of the Hon’ble Supreme Court in the case of NANDLAL WASUDEO BADWAIK VS. LATA NANDLAL BADWAIK AND ANOTHER reported in AIR 2014 SCC 932 and would submit that in view of the ratio laid down therein, the said report could be taken as conclusive proof of the identity of the deceased.
24. Further, answering the contention advanced by the learned defence counsel that the skeletal remains were seized from the open space, the learned Addl.SPP would point out that the place from where these articles were recovered was not accessible to the public. It is indicated in the mahazar Ex.P27 that the place where the dead body was burnt was a quarry and the skeletal remains were found at a depth of 9 feet in a ditch. It was not an open space. Regarding the presence of the Doctor and other Police Officers at the spot, the learned Addl.SPP contends the said submission is canvassed by misreading the evidence. The evidence of PW-1 would indicate that before proceeding to the spot, he sent a requisition to PW-28 to assist him in the investigation. The evidence of PW-1, PW-3 and PW-28 manifest that the Investigating Officer, panchas and the Doctor together went to the spot and therefore there is no scope to contend that either the Doctor or any other Police Officers were present at the spot, before the same was pointed out by the accused. It is the submission of the learned Addl.SPP that there is absolutely no infirmity or illegality whatsoever either in the recovery mahazar or in the DNA report obtained by the prosecution. This evidence coupled with the testimony of the mother of the deceased with regard to the motive for the commission of the offence establish complete link of circumstances, pointing out the guilt of the accused and therefore the conviction recorded by the trial court insofar as accused Nos.1 and 2 is concerned, is well-merited and based on legal evidences and hence he seeks for dismissal of the appeal preferred by accused No.1 and accused No.2.
25. In support of the appeal filed by the State, the learned Addl. SPP submits that the recoveries were effected in the presence of accused No.3, and therefore the knowledge of the fact discovered can also be imputed to accused No.3. In the FIR lodged at the earliest instance accused Nos.1, 2 and 3 as well as accused Nos.4 and 5 were implicated and their specific role in the commission of the offence was also spelt out. Corroborative evidence has been adduced by the prosecution in proof of these facts.
Therefore, the acquittal of accused Nos.3, 4 and 5 is contrary to the material on record. It is the submission of the learned Addl.SPP that if the evidence adduced by the prosecution is read in its entirety, it is sufficient to convict all the accused including accused Nos.3 to 5. Hence, he prays for conviction of accused Nos.3 to 5 by allowing the appeal filed by the State.
26. Countering the above submissions, Sri.Lethif learned counsel appearing for accused No.3 submits that the very case of the prosecution is that accused No.3 got down in Gundlupet. There is no evidence to show that he was aware of either the intention of accused Nos.1 or 2 or that he participated in the alleged offences in whatsoever manner. The prosecution has not proved any overt acts against accused No.3. His presence during occurrence is not established. Merely because he was present during the recovery, which admittedly was effected pursuant to the voluntary statement of accused No.1, there is no reason to come to the conclusion that accused No.3 was also a privy to the offence. Therefore, he submits that the trial court was well-justified in acquitting accused No.3 and seeks for dismissal of the appeal filed by the State insofar as accused No.3 is concerned.
27. Sri.M.H.Prakash, learned counsel appearing for accused Nos.4 and 5 would contend that the very ownership of the Tata Sumo vehicle has not been proved. No complaint was filed alleging theft of the said vehicle. There is no evidence to show that accused Nos.1 to 3 had sold the said Tata Sumo Vehicle to accused Nos.4 and 5. Merely because the dismantled parts of the Tata Sumo were recovered from the scrap shop from one Chandpasha, who is not examined before the court, solely on the basis of the voluntary statement of the co-accused, it was not proper to implicate accused Nos.4 and 5. In any event, the prosecution having not proved that the said vehicle was used either for the commission of the offence at the instance of accused Nos.4 and 5 or that they had any knowledge of the offence, either at the time of the dismantled parts were seized from their possession or any time earlier, the trial court was well- justified in acquitting them and hence seeks for dismissal of the appeal preferred by the State.
28. We have examined each of the contentions urged by the parties with reference to the oral evidence and the documents produced by the prosecution. Since the main contention of the learned counsel for accused No.1 is based on the validity and the reliability of the DNA report, we have considered this issue at depth.
29. The principal objection raised by the learned counsel for accused No.1 with regard to the validity of the DNA evidence is that the femur bone, which was seized at the instance of PW-25 was also included in DNA profiling along with other skeletal bones seized under Ex.P5. Referring to the evidence of PW-25, he has built-up an argument that the said femur bone was seized under Ex.P10, from the place shown by PW-25. PW-31 is also specific in his evidence that the said femur bone was also subjected to DNA analysis along with the skull and other bones.
Therefore, the contention of the learned counsel is that the possibility of DNA extract of this femur bone being mixed up with the extracts of other items namely, the skull, mandible and the other burnt bones cannot be ruled out, as a result the DNA report, Ex.P24 is rendered doubtful and unreliable. This argument, in our opinion, is totally misconceived and runs contrary to the evidence on record. The learned counsel appears to have canvassed the said argument on the erroneous premise that DNA extracted from each items is mixed up and thereafter subjected to comparison. But the report issued by PW-31 namely Ex.P24 does not support this argument. In the report at Ex.P24, PW-31 has specifically narrated the method followed by him in conducting the DNA test. He has categorically stated that the exhibits sent to him in Crime No.120 of 2009 of Nanjangudu Rural Police Station, were separately coded. The code assigned to each sample is detailed in page-2 of his report, as under:
ITEM NO.
SAMPLE/ARTICLE-EXAMINED DESCRIPTION SOURCE DNAC CODE NO.
1. One sealed cloth packet said to contain one skull and mandible collected from the scene of crime H90 2. One sealed cloth packet said to contain few burnt bones collected from the scene of crime H91 3. One sealed cloth packet said to contain one femur bone collected from the scene of crime H92 4. One sealed tube said to contain sample blood collected from male individual by name Sri.Jiyaulla S/o Late Sri Abdul Sathhar H93 5. One sealed tube said to contain sample blood collected from female individual by name Smt.Jabin Taj W/o Sri Jiyaulla H94 6. One sealed paper packet said to contain three photographs of the deceased -
7. One sealed paper packet said to contain passport size photographs of the accused -
The method followed by him is narrated in page-3 of the report which is extracted here below:
“METHOD:
Due care taken for the integrity of each sample by coding and decoding.
1. The DNA isolated from the samples sent in item Nos.1, 2, 3, 4 and 5.
2. DNA was extracted, quantified and amplified by the Polymerase Chain Reaction (PCR) from each of the above samples.
3. Sample was profiled using PCR amplified STR technique for 15 STR, and the DNA profile results for each of the sample are shown in the enclosed Annexure-I.
4. A comprehensive analysis of the above results and the interpretation there of are given in Annexure-II.”
30. From the above, it is clear that the DNA was isolated from each samples separately. Thereafter the DNA extract from each sample was quantified and amplified by PCR technique and the profile results of each of the sample are shown in Annexure-II.
31. The method followed by PW-31 as indicated in Ex.P24 rules out the possibility of any such goof up as contended by the defence. It is specifically stated in Ex.P24, that the DNA that was extracted from each sample was quantified and amplified by P C R from each of the samples. PCR (Polymerase Chain Reaction) is the technique used in molecular biology to amplify a single copy or a few copies of a segment of DNA across several orders of magnitude, generating thousands of millions of copies of a particular DNA sequence. For PCR, five chemical components are needed namely, DNA template, DNA polymerase enzyme, primers, nucleotides and reaction buffer. The report at Ex.P24 and the evidence of PW-31 is in conformity with this technique. From his evidence it is clear that first he isolated the DNA from each samples, namely; skull with mandible, burnt bone pieces, femur bone and blood samples of the parents of the deceased. The said extract was quantified and amplified by using PCR technique. Thereafter a comparative table was prepared as shown in Annexure-I. A glance at Annexure-I would clearly indicate that PW-31 has separately and individually compared the DNA extracted from each of the sample. Annexure-I is extracted herebelow:
32. This Annexure coupled with the opinion of PW-31 completely negates the contention of the defence counsel, that on account of subjecting the femur bone for DNA analysis, the results of the DNA test is rendered doubtful. Having regard to the method followed by P.W.31, in our opinion, even if the results of sample H92 (femur bone) is excluded from the report, still it will not affect the ultimate result. On the other hand, if the result of H92 is considered, it would further fortify the case of the prosecution, that even this femur bone which was found at some distance from the spot initially shown by accused No.1 contained identical DNA which matched with the DNA of the parents of the deceased. Therefore, we have no hesitation whatsoever in accepting the report of PW-31 as evidenced in Exhibit-P24 in proof of the identity of the deceased.
33. The contention of the learned defence counsel that the bones sent for DNA profile were not properly preserved and packed is also contrary to the material on record and cannot be accepted. In buttressing the argument, the learned counsel seems to have relied on the evidence of the mother of the deceased, who has stated in her evidence that the skull and the bones were shown to her in the Police Station. No doubt she has stated so in her evidence, but there is no clarity as to whether the said bones were shown to her in a packed condition or in an unpacked condition. Nowhere it has been elicited that these bones were in open condition. The evidence of panch, PW-3 and the Investigating Officer indicates that the skull with mandible as well as burnt bone pieces and the burnt clothes seized from the spot were packed at the spot and were taken into custody by the Investigating Officer. The records would indicate that the seizure was intimated to the Court and necessary permission was obtained to retain the same. It is not the case of the defence that the said sealed pack were opened at any time. On the other hand, the material on record reveals that when PW-31 received these articles for DNA test, the same were verified in the office and the seals were found intact. In the face of this evidence, the contention of the defence that the bones were not kept in safe custody cannot be accepted.
34. Insofar as the alleged delay in forwarding the seized articles for DNA test is concerned, the material on record, especially the evidence of PW-32 indicates that soon after recovery, the seized skull and bones were sent to Mysuru Medical College, Forensic Department, for the purpose of super-imposition. PW-32 has specifically deposed in his evidence that the said articles were returned to him with a covering letter dated 07.07.2009, for the reason that skull was not fit for super imposition. The learned Addl.SPP has conceded that this covering letter has not been marked in evidence even though it was produced along with additional charge-sheet. Nonetheless, the testimony of PW-
32 that the seized articles namely, MOs 9, 10 and 12 were sent to Mysuru Medical College has not been disputed in the cross-examination. Further, the evidence of PW-32 would also indicate that after the receipt of the opinion from the Mysuru Medical College, he forwarded the same for DNA analysis. Thus, the delay whatsoever in sending these articles for DNA analysis has been properly explained by the prosecution and therefore we are of the view that on that score the defence cannot seek to nullify the DNA evidence produced by the prosecution.
35. Likewise the other contentions urged by the learned counsel for the defence that for want of subjecting the skull for super-imposition test, the case of the prosecution is rendered susceptible to doubt also cannot be accepted. No doubt, the super-imposition test would have lent further assurance and corroboration to the case of the prosecution in determining the identity of the dead body, but, in the instant case it is noticed from the records that at the first instance, the recovered skull and the burnt bones were infact forwarded to the Medical College, Mysuru for super-imposition test. However, the medical officer having returned the same for the reason that skull was unfit to super-imposition, the Investigating Officer appears to have sent it for DNA examination. Therefore, it cannot be said that the Investigating Agency has not made any efforts to secure the scientific opinion with regard to the identification of the deceased. Nevertheless, the non-obtaining of this opinion cannot be taken as a circumstance to doubt or disbelieve the DNA evidence produced by the prosecution in proof of the identity of the deceased. Therefore, the objection raised in this regard is also liable to be rejected.
36. Coming to the evidentiary value of the DNA report, the contention of the learned defence counsel is that, the DNA evidence by itself cannot be made the basis for conviction without independent corroborative evidence. In support of this plea, he has placed reliance on the decision in RANJITHSING BRAHMAJEETSING SHARMA VS. STATE OF MAHARASHTRA AND ANOTHER, reported in AIR (2005) SC 2277, with reference to paragraphs – 77 and 78, wherein it is held that : “DNA evidence may have a great significance where there is supporting evidence, dependent, of course, on the strength of that evidence.
“… in every case one has to put the DNA evidence in the context of the rest of the evidence and decide whether taken as a whole it does amount to a prima facie case.”
37. He has also relied on another decision of the Hon’ble Court of Appeal (Criminal Division) reported in 2000 All England Reporter 1469, wherein also it is observed that DNA evidence may have a greater significance where there is supporting evidence dependent, of course, on the strength of that evidence. We are in complete agreement with the views held in the above decision as it is the basic principle of Criminal law that solely on the basis of the opinion evidence, it is not prudent to determine the guilt of the accused for the offences charged against him. But, in the instant case, the prosecution appears to have relied on the DNA evidence only to prove the identity of the deceased and not to prove the ingredients of the charges levelled against the accused. Insofar as the facts constituting the offences charged against the accused is concerned, we find from the record that in addition to the DNA evidence, the prosecution has produced the evidence relating to the recovery of the weapons, circumstance of the accused pointing out the spot of offence and the motive leading to the guilt of the accused.
38. There cannot be any dispute that DNA evidence is one of the well accepted mode of establishing the identity of the deceased. Nodoubt, the legal acceptance of this evidence depends upon the integrity of the evidential material and the regularity of the procedure followed by the expert in arriving at the conclusion as per the requirement of the Science. Such an evidence must necessarily satisfy the legal requirements of evidence and must inspire confidence in the mind of the Court to hold that the opinion given by the expert is acceptable and is supported by convincing reasons and justifications which could stand the test in a Court of law. In this context, it may be useful to refer to the view held by the Hon’ble Supreme Court of India in NANDLAL WASUDEO BADWAIK VS. LATA NANDLAL BADWAIK AND ANOTHER reported in AIR 2014 SC 932 where in para-17 of the judgment it is observed as under:
“17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”
39. In the light of the above proposition and in view of the evidence of P.W.31 and the opinion given by him vide his report Ex.P24 which is supported by valid reasons and justifications and for reasons already discussed in the preceding part of this judgment, we are of the considered opinion that the opinion given by P.W.31 that the DNA profile of the skull with mandible, burnt bone pieces and femur bone relates to the offspring of Sri.Jiyaullah and Smt.Jabin Taj could be accepted as the conclusive proof of the identity of the deceased.
40. The next contention urged by the learned counsel relates to the recovery of MOs 7, 8 and 10. In proof of this recovery, the prosecution has relied on the evidence of PW-1, the then A.C.P. in C.C.B., Mysuru and the evidence of PW-3, the panch witness who participated in the recovery of these material objects.
41. We have carefully examined the evidence of the above witnesses. From the evidence of PW-1 and PW-3, it is established that at the instance of accused No.1, the recovery mahazar at Ex.P5 (Ex.P27) was prepared and under the said mahazar, a match box, cigarette packet, empty beer bottles, long, machu, blood stained mud and sample mud were recovered. Likewise, it is proved that from the spot where the dead body was burnt, a plastic can – MO-8, skull – MO-9, burnt teeth – MO-10, burnt clothes pieces - MO-11, burnt bones-MO-12 were recovered. Though the learned counsel for the accused has disputed the recovery mahazar, yet, in appreciating this contention, it is relevant to note that the testimony of PWs-1 and 3 regarding the accused taking them to the spot of offence described in Ex.P5 (Ex.P27) has not been discredited or falsified. We do not find anything in the cross-examination of these witnesses to doubt or disbelieve their testimony. The voluntary statement of accused No.1 i.e., the admissible portion under Section 27 of the Evidence Act namely, Ex.P1 which has led to the discovery of incriminating facts is marked during trial. It is proved in evidence that pursuant to the said statement, aforesaid MOs-1 to 17 were recovered at the instance of accused No.1.
42. It is also a matter of record that after his arrest, accused No.2 also pointed out the very same spot of offence mentioned in Ex.P5(Ex.P27), pursuant to his voluntary statement made before the I.O. and the panch witnesses indicating his knowledge and participation in the crime charged against him. The statement made by accused No.2 before the I.O.(Ex.P28) and the mahazar(Ex.P29) drawn up at the instance of accused No.2 are also duly proved. This material coupled with the recovery effected at the instance of accused No.1, squarely implicates accused No.2 in the offence of murder and the offence of causing disappearance of evidence charged against him. Though it is vehemently argued that the investigating agency was already knew the spot of offence much before the voluntary disclosure made by accused No.2, yet the fact remains that soon after his arrest, accused No.2 also volunteered to show the spot of offence which has turned out to be the very same spot mentioned in Ex.P5(Ex.P27). The question as to whether the facts discovered pursuant to the information given by an accused would incriminate all the accused need not detain us in view of the law laid down by the Hon’ble Supreme Court in STATE (NCT OF DELHI) V/S. NAVJOT SANDHU ALIAS AFSAN GURU, (2005), 11 SC 600, wherein at para 145, the Hon’ble Supreme Court has observed thus:
“Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. “A person accused” need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27.”
43. In the instant case, the evidence produced by the prosecution clearly goes to show that accused No.2 also made similar disclosures relating to the murder of the deceased, the knowledge of the spot of murder and the place where the dead body was burnt and the weapons were hidden after the commission of the offence. This information is akin to the information given by accused No.1 which has convincingly led to the discovery of the place of murder as well as to the discovery of the burnt remains of the deceased and other incriminating objects including the weapons used for commission of the offence. Therefore, the facts discovered pursuant to the voluntary statement made by accused No.1 could be legally attributed and imputed to accused No.2 as well thereby establishing his nexus with the murder of the deceased. In the light of the above material and the evidence produced by the prosecution, we do not have any hesitation to hold accused Nos.1 and 2 guilty of the offences under Section 302 and 201 read with 34 of IPC.
44. Though the learned counsel for accused Nos. 1 and 2 have contended that the above recoveries cannot be ascribed any weight for the reason that the said recoveries were effected from open place and the doctor and Police Officers were already present at the spot much before the spot was shown by the accused, we do not find any substance in the said contention. The evidence on record clearly indicates that the place of offence was a remote area. It was a fallow land. The circumstances brought out in the evidence of P.W.1, P.W.3 and P.W.32 indicate that no agricultural operations were going on either at the place of murder or in the vicinity thereof. There is nothing in mahazar-Ex.P5 (Ex.P27) or in the evidence of the above witnesses to show the movement of people in and around the said location or the existence of any houses surrounding the area. Even otherwise, according to the prosecution, the murder was committed during night. Therefore the presence of people around the place of offence was near impossible. Moreover, the place where the dead body was burnt was a ditch beside a canal which was not accessible to the public nor visible to the passersby. The description of these two places as mentioned in Ex.P5 (Ex.P27) itself is sufficient to hold that the place of murder and the place where the dead body was burnt was not an open place as contended by the defence. It is also proved by the prosecution that the weapons were hidden under a neem tree and they were produced by accused No.1 himself. Therefore, the contention of the learned defence counsel that the recoveries relied on by the prosecution are tainted and cannot be accepted in evidence is liable to be rejected.
45. The further contention of the learned counsel that the Doctor and the Police Officers were present at the spot before the arrival of the accused and the I.O., appears to have been canvassed by misreading the evidence of PW-1, P.W.3, and P.W.28. We have considered their evidence. PW- 3 is the panch-witness to the mahazar at Ex.P5 (Ex.P27). In the cross-examination, it is elicited that when they went to the spot, Doctor had also come to that spot. This statement cannot be construed to mean that the doctor was present at the spot before the arrival of accused No.1 and the I.O. as sought to be contended by the defence. In this regard, it is pertinent to note that P.W.28 the Doctor who assisted the I.O. has also stated in his evidence that before he reached the spot, Police persons were already present at the spot. Apparently, based on this evidence, it is contended that the Doctor and the Police persons were already aware of the spot and therefore there was nothing for the Investigating Agency to discover the fact which was already known to them. We do not find that the evidence of PW-3 or PW-28 conveys the meaning as sought to be canvassed by the defence counsel. In this regard, it is relevant to refer to the evidence of PW-1 the ACP, who recorded the voluntary statement of accused No.1 after his arrest. This witness has unequivocally stated before the court that pursuant to his voluntary statement, accused No.1 led him and the panch witnesses to the spot. He has specifically stated in his evidence that before leaving to the said spot, he made a requisition to PW-28, the Doctor to assist in the investigation. The relevant portion of the chief-examination of P.W.1 reads as under: (translated from Kannada to English) “Before going to the said spot, I made a requisition to the Doctor. Before reaching the said spot itself, the Doctor was with us.”
In his further chief-examination he has stated thus:
“By the time we could reach the spot, Doctor Sri.Govindaraj and other Police Officers were waiting for us. I instructed them to follow us and accordingly they followed us.”
46. The above evidence makes it abundantly clear that pursuant to the requisition made by P.W.1, the Doctor namely P.W-28 was waiting for P.W.1 and when he met P.W.1 he was asked to follow the Investigating Officer.
Therefore the contention of the learned counsel for the accused that the Doctor and the police officers were present at the spot before the arrival of the accused No.1 at the spot, holds no water. On the other hand, a conjoint reading of the evidence of P.W.1 and P.W.28 clearly indicate that before reaching the spot, P.W.28 joined P.W.1 and the panchas and all of them together went to the spot, as led by the accused. It has specifically come in the evidence that accused No.1 led them to the spot. It is further brought out that on seeing the accused pointing out the burnt bones and skull, the same was identified by the Doctor as that of a human being. Therefore, this contention also is liable to be rejected.
47. Insofar as the motive is concerned, the evidence of P.W.13, the mother of the deceased indicates that the deceased and accused Nos.1 to 3 were roaming together as friends and they were involved in various cases of theft and chain snatching. She has specifically stated in her evidence that prior to the incident, accused Nos.1 and 2 had come in search of the deceased stating that they had left the stolen properties in his possession. When they did not find the deceased in the house, they proclaimed that if they find him, they would not leave him alive. P.W.13 has further stated that about 1½ months after this incident, she came to know about the murder of her son. This evidence suggests a strong motive for the accused to commit the murder of the deceased. All these circumstances, therefore, lead to the inference that to do away with the deceased, the accused committed his murder and burnt the dead body to cause disappearance of the evidence of murder. The fact that the burnt skeletal remains of the deceased were recovered at the instance of the accused along with the weapons used for the commission of the offence reinforces the conclusion that on account of the above motive, the accused murdered the deceased.
48. On going through the records, we find that the trial Court has considered all the above facts and circumstances and has found the accused guilty of the offences charged against them. We are in agreement with the findings recorded by the trial Court. Though the trial Court has not discussed the evidence at length and has not recorded specific findings with regard to the contentions raised in these appeals, yet, on reconsideration of the entire material and the evidence, we are of the considered opinion that the prosecution has proved its case beyond any semblance of doubt. On analyzing the entire evidence, we find that the prosecution has convincingly proved the following circumstances in bringing home the guilt of accused No.1 and 2 namely :
(1) Accused Nos.1 to 3 and the deceased were involved in various cases of theft and chain snatching.
(2) Immediately preceding the incident, accused Nos.1 and 2 proclaimed to kill the deceased as he did not give them their due share in the stolen properties.
(3) The knowledge of the accused about the spot of murder.
(4) The discovery of the skeletal remains of the deceased at the instance of accused Nos.1 and 2.
(5) The identification of the skeletal remains as that of the deceased.
(6) The recovery of the weapons used for the commission of the offence at the instance of accused Nos.1 and 2 near the spot of offence.
(7) The recovery of the diesel can and other incriminating objects from the spot of offence pursuant to the voluntary disclosure made by accused Nos.1 and 2.
(8) The motive for the commission of the offences.
49. The above circumstances unerringly lead to the inference of the guilt of the accused for the offences charged against them. It is conclusively proved by the prosecution that the skull and the burnt pieces recovered at the instance of accused Nos.1 and 2 belonged to deceased Humayun. The prosecution has also proved that the deceased was done to death by the weapons which were recovered at the instance of accused No.1 as reflected in Ex-P5 and Ex.P17. It is proved that the said weapon contained human blood. Added to that, the prosecution has proved the motive for commission of the above offences. All these circumstances, in our view, cumulatively establish the guilt of accused Nos.1 and 2 for the offence punishable under sections 302 and 201 read with Section 34 of Indian Penal Code. The trial Court was therefore justified in convicting accused Nos.1 and 2 for the said offences. We do not find any error of infirmity in the impugned judgment either in the appreciation of the evidence or in the findings recorded by the trial Court. Hence, we do not have any hesitation to affirm the conviction of accused Nos.1 and 2 for the above offences.
50. So far as the involvement of accused Nos.3, 4 and 5 is concerned, we do not find any reason to allow the appeal filed by the State. The very case of the prosecution is that accused No.3 got down at Gundlupet and thereafter only accused Nos.1 and 2 proceeded towards Mysuru along with the deceased. There is no evidence to show that accused No.3 either participated in the crime or that he shared common intention with accused Nos.1 and 2 in liquidating the deceased. The only evidence available on record against accused No.3 is that he was present alongwith accused No.1 at the time of his arrest and when accused No.1 showed the spot of offence. This evidence in our opinion is not sufficient to prove the complicity of accused No.3 in the alleged offences. It is not the case of the prosecution that accused No.3 also showed the spot or that any fact was discovered pursuant to the voluntary disclosure made by him. Though there is evidence to show that the accused and the deceased were friends and were involved in various theft and robbery cases, there from, it cannot be concluded that accused No.3 was also instrumental in causing the death of the deceased. Benefit of doubt may have to be extended to accused No.3 for want of direct and circumstantial evidence in proof of his involvement in the alleged commission of the offence.
51. Likewise, there is no evidence whatsoever to show that accused Nos.4 and 5 were also involved in facilitating the disappearance of the evidence of murder. The only evidence collected against accused Nos.4 and 5 is that the Tata Sumo vehicle, which was alleged to have been stolen by the accused for committing the offence, was found in the scrap shop of Chandpasha. The said Chandpasha is not examined. The ownership of the vehicle is also not proved. There is no material to show that the said vehicle was infact sold by accused Nos.1 to 3 to PWs-4 and 5. Under the said circumstances, the trial court was justified in acquitting accused Nos.4 and 5. We do not find any reasonable ground to upset the said finding. The learned Addl. SPP has not been able to lay hands on any piece of evidence in support of the involvement of accused Nos.4 and 5 in the offence charged against them. As a result, the acquittal of accused Nos.3, 4 and 5 deserves to be confirmed. Consequently, the appeal filed by the State is liable to be dismissed.
52. Hence, we proceed to pass the following order:-
1. Crl.A.No.822 of 2012 filed by accused No.1 is dismissed.
2. Crl.A.No.934 of 2012 filed by accused No.2 is dismissed.
3. Crl.A.No.1143 of 2012 filed by the State challenging the acquittal of accused Nos.3, 4 and 5 also stands dismissed.
4. The impugned judgment and the order of sentence dated 30.04.2012 passed by the Presiding Officer, Fast Track Court-IV, Mysuru, convicting accused Nos.1 and 2 for the offences punishable under sections 302 and 201 read with 34 Indian Penal Code is confirmed.
Sd/- Sd/-
JUDGE JUDGE dkb/mpk/* jj/mn