1 ® IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE B. A. PATIL CRL.A. NO.1033/2014 C/W CRL.A. NOS.1032/2014, 5/2015, 86/2015 & 167/2015 IN CRL.A. NO.1033/2014 BETWEEN MANJUNATH @ MANJU S/O GOVINDEGOWDA AGED ABOUT 26 YEARS R/O MALANGI GOMAL VILLAGE PERIYAPATNA TALUK MYSURU DISTRICT NOW IN JUDICIAL CUSTODY AT CENTRAL PRISON, MYSURU ... APPELLANT (BY SRI.HASHMATH PASHA, SR.COUNSEL.) AND STATE OF KARNATAKA BY DEVARAJA POLICE, MYSURU REP. BY LEARNED STATE PUBLIC PROSECUTOR ... RESPONDENT (BY SRI. SUDEEP BANGERA, SPL.PP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 15/16.9.14 PASSED BY THE PRINCIPAL SESSIONS JUDGE, MANDYA IN S.C.NO.89/2012 CONVICTING THE APPELLANT/ ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 201 READ WITH 34 OF IPC AND UNDER SECTION 364 OF IPC.
****** IN CRL.A. NO.1032/2014 BETWEEN 1. ADITHYA @ MANI S/O CHANDRA, AGED ABOUT 22 YEARS R/O MALANGI GOMAL VILLAGE PERIYAPATNA TALUK MYSURU DISTRICT NOW IN JUDICIAL CUSTODY AT CENTRAL PRISON, MYSURU 2. CHANDRA S/O LATE KUMARASWAMY AGED ABOUT 26 YEARS R/O MALANGI GOMAL VILLAGE PERIYAPATNA TALUK MYSURU DISTRICT NOW IN JUDICIAL CUSTODY AT CENTRAL PRISON, MYSURU ... APPELLANTS (BY SRI. HASHMATH PASHA, SR. COUNSEL) AND STATE OF KARNATAKA BY DEVARAJA POLICE, MYSURU REP. BY LEARNED STATE PUBLIC PROSECUTOR ... RESPONDENT (BY SRI. SUDEEP BANGERA, SPL.PP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 15/16.9.14 PASSED BY THE PRINCIPAL SESSIONS JUDGE, MANDYA IN S.C.NO.89/12- CONVICTING THE APPELLANTS/ /ACCUSED NOS.2 AND 3 WHO ARE SENTENCED TO UNDERGO R.I. FOR LIFE AND TO PAY FINE OF RS.10,000/- (RUPEES TEN THOUSAND ONLY) EACH FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC. IN DEFAULT OF PAYMENT OF FINE AMOUNT, THEY SHALL UNDERGO R.I. FOR ONE YEAR.
****** IN CRL.A.NO. 5/2015 BETWEEN STATE BY DEVARAJA POLICE MYSURU – 570 008 ... APPELLANT (BY SRI. SUDEEP BANGERA, SPL.PP) AND RAMESHA S/O LAKKAIAH AGED ABOUT 26 YEARS R/AT MALANGI GOMALA PERIYAPATNA TALUK MYSURU DISTRICT – 570 008 ... RESPONDENT (BY SRI. GOWTHAMDEV C. ULLAL, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 15/16.09.2014 PASSED BY THE PRINCIPAL SESSIONS JUDGE, MANDYA IN S.C.NO.89/2012 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 120B OF IPC.
***** IN CRL.A.NO. 86/2015 BETWEEN STATE OF KARNATAKA BY DEVARAJA POLICE STATION MYSURU – 570 001 ... APPELLANT (BY SRI. SUDEEP BANGERA, SPL.PP) AND 1. MANJUNATHA @ MANJU S/O GOVINDEGOWDA AGED ABOUT 26 YEARS 2. ADITHYA @ MANI S/O CHANDRA AGED ABOUT 22 YEARS 3. CHANDRA S/O LAKKAIAH AGED ABOUT 24 YEARS ALL ARE RESIDENTS OF MALANGI GOMALA PERIYAPATNA TALUK MYSURU DISTRICT – 571 107..RESPONDENTS (BY SRI. HASHMATH PASHA, SR. COUNSEL) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 CR.P.C., PRAYING TO ALLOW THIS CRIMINAL APPEAL AND MODIFY THE ORDER OF SENTENCE IMPOSED BY THE LEARNED PRINCIPAL SESSIONS JUDGE, MANDYA DATED 15/16.9.2014 IN SESSIONS CASE NO.89/2012 AND IMPOSE APPROPRIATE AND ADEQUATE SENTENCE AGAINST THE RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 201 AND 364 OF IPC READ WITH SECTION 34 OF IPC AND ETC., ****** IN CRL.A. NO. 167/2015 BETWEEN MR. M. D. RAGHU AGED ABOUT 48 YEARS S/O M. P. DASAGOWDA NO.921, 5TH CROSS, 5TH MAIN HINKAL MYSURU – 571 570 ... APPELLANT (BY SRI. VISHNU HEGDE, ADVOCATE) AND 1. STATE BY DEVARAJA POLICE STATION MYSURU – 570 001 2. MANJUNATH @ MANJU AGED ABOUT 27 YEARS S/O GOVINDEGOWDA 3. ADITHYA @ MANI AGED ABOUT 23 YEARS S/O CHANDRA 4. CHANDRA AGED ABOUT 27 YEARS S/O LATE KUMARASWAMY 5. RAMESHA AGED ABOUT 28 YEARS S/O LAKKAIAH RESPONDENT NOS.2 TO 5 ARE R/AT MALANGI GOMALA PERIYAPATNA TALUK MYSURU DIST – 571 107. ... RESPONDENTS (BY SRI. SUDEEP BANGERA, SPL.PP FOR R-1; SRI. HASHMATH PASHA, SR.COUNSEL FOR R2-R4;
SRI. GOWTHAMDEV C. ULLAL, ADV. FOR R-5) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CR.P.C. PRAYING TO (1) GRANT LEAVE TO THE APPEAL AGAINST THE PART OF JUDGMENT AND ORDER ACQUITTAL DATED 16/15.09.2014 PASSED BY THE LEARNED PRINCIPAL SESSIONS JUDGE, MANDYA IN S.C.NO.89/2012 IE., ANNEXURE-A BY CONVICTING ALL THE ACCUSED NOS.1 TO 4 FOR THE OFFENCES COMMITTED UNDER SECTION 120(B) OF IPC ETC., & (2) TO SET ASIDE THE ABOVE SAID JUDGMENT.
******* THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 14.01.2019 AND FURTHER HEARD ON 15.3.2019 COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT, THIS DAY K.N. PHANEENDRA, J., MADE THE FOLLOWING:
JUDGMENT All the above five appeals are filed calling in question the judgment of conviction dated 15.09.2014 and order on sentence dated 16.09.2014 passed by the Principal Sessions Judge, Mandya in SC No.89/2012.
2. The appellant-Manjunath @ Manju (A1) has filed Criminal Appeal No.1033/2014 and the appellant (A2)-Adithya @ Mani and appellant (A3)-Chandra have filed Criminal Appeal No.1032/2014.
3. The appellants (A1 to A3) have actually challenged the judgment of conviction and order on sentence passed by the trial Court for the offence punishable under section 302 r/w. 34 of IPC sentencing each of them to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year. Further, each of the accused- 1 to 3 are sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for six more months, for the offence punishable under section 201 of IPC; Further, Accused No.1 has specially challenged the sentence passed by the trial Court against him to undergo rigorous imprisonment for seven years for the offence punishable under section 364 of IPC with default sentence.
4. Criminal Appeal No.5/2015 is filed by the State against the judgment of acquittal acquitting Accused No.4 in the said case.
5. Criminal Appeal No.86/2015 is filed by the State for enhancement of the sentence to Accused Nos.
1 to 3 for the offence under Section 302 of IPC from life imprisonment to death.
6. Criminal Appeal No.167/2015 is filed by the complainant (PW.3) against the order passed by the trial Court in acquitting Accused Nos. 1 to 4 for the offence punishable under section 120(B) of IPC.
7. We have heard the detailed arguments of the learned counsel appearing for the appellants/accused and also the learned Special Public Prosecutor appearing for the State in Criminal Appeal Nos. 1032/2014 and 1033/2014.
8. We have also heard the learned counsel for the appellant complainant in Criminal Appeal No.167/2015 and also the counsel for Accused No.4, who is the respondent in Criminal Appeal No.5/2015 and Respondent No.3 in Criminal Appeal No.167/2015.
9. We have carefully perused the entire oral and documentary evidence and also examined the impugned judgment and sentence passed by the trial Court.
10. Before adverting to the grounds urged in the appeal and the elaborate arguments advanced by the learned counsel for the appellants/accused Nos.1 to 4 and also the submissions made on behalf of the Respondent-State by the Special Public Prosecutor, we feel it just and necessary to have the brief factual matrix of this case.
11. FACTS OF THE PROSECUTION CASE:
The case of the prosecution is that, the complainant by name Mr. M.D. Raghu (PW.3) was working at JMFC Court, Mysuru, as Assistant Public Prosecutor. He is the native of Malangi Gomala Village in Periyapatna Taluk. He is the son of M.T. Dasegowda and he is having two brothers by name Govindegowda and Chandregowda and sisters by name Smt.Sunitha, Smt.Jayamma and Smt.Sharada. He joined the services as Assistant Public Prosecutor, while he was working at mysuru, he was residing at Kalamandira Apartment G Block, Ground Floor, situated at Mysuru City. He has given up his share in the landed property fell to his share, in favour of his brother Govinde Gowda and his son by name Manjunath, who is Accused No.1 before the trial Court. The deceased Smt. H.N. Latha, is the wife of PW.3. As they were not having any issues for long marital period, they fostered a child by name Adarsha, who was aged about 2½ years at the time of the incident.
12. It is the further case of the prosecution that, in the year 2011 precisely on 29.06.2011 at about 9.30 a.m., PW-3 (Raghu) as usual, went to his office and when he came back to home in the afternoon, he did not find his wife and the child in the house, and even in the evening he did not find his wife and the child in the house. He presumed that, they might have gone to the nearby house or went to the city etc. Thereafter, in the night also he did not return to the house and in fact, he went to his friend’s house and stayed there and came back in the morning and then also he did not find his wife and child and immediately he went to Devaraj Police Station and lodged a missing complaint (registered in Crime No.133/2011) with regard to missing of his wife and son. On the next day he enquired with the neighbours and thereafter, he came to know that Accused No.1 had come to his house on that particular day and took the wife and child of the complainant along with him. Having suspected Accused No.1, he informed the police about the said aspect. Thereafter, the police have secured the presence of Accused No.1 and his father to the Police Station and in fact on enquiry, Accused No.1 has disclosed that he has taken the wife and child of the complaint (PW.3) along with him on 29.06.2011 and with the help of Accused Nos.2 & 3, he has committed the murder of the wife (Smt. Latha) of PW.3 and left the child (Adarsha) somewhere else. On receiving such information and also the information with regard to the other assailants, who were all with the deceased on that day, the Devaraja Police, Mysuru, have continued a case in the same Crime No.133/2011 against Accused Nos. 1 to 4 adding the offences punishable under Sections 302, 201, 364 of IPC and began the investigation. During the course of investigation, the police found that, because of the strong motive on the part of Accused No.1, he has conspire with Accused Nos. 2 to 4 and committed the above said offence. After thorough investigation, the police have filed the charge sheet against the Accused Nos.1 to 4.
13. It is the further case of the prosecution that, Accused No.1 had a grinding axe against PW.3 and as well as his wife for strong motive that is to say, PW.3 and his wife were demanding income from the crop from Accused No.1 and his father, as they were not properly giving share in the crop to PW.3 and his wife. In this context, they have also directed Accused No.1 and his father to give up the possession of the landed property belonging to them. Further, another motive alleged is that, there was a proposal for giving a girl in marriage by name Kumari Shilpa, the daughter of Smt. Sunitha ie., the sister’s daughter of PW.3 to Accused No.1. Accused No.1 and his father have presumed that, PW.3 and his wife have wrongly persuaded the said Smt. Sunitha not to give her daughter in marriage to Accused No.1 and therefore, Accused No.1 was also not happy and he was nurturing ill-will against PW.3 and his wife.
14. It is also the further case of the prosecution regarding Motive that, in the year 2011, PW.3 has taken a crop loan Rs.1,80,000/- from Panchavalli Agricultural Co-operative Society and out of that, on request, he has paid Rs.50,000/- to the father of Accused No.1, but after utilizing the same Accused No.7’s father, Further insisted for Rs.50,000/- more, but, that was not acceded by PW.3. On this count also, Accused No.1 and his father were nurturing hatredness against PW.3 and his wife.
15. In the above backdrop, it is the further case of the prosecution that, Accused No.1 came to the house of PW.3 on 29.06.2011 and on the guise that, he want to purchase a gold chain, he persuaded the wife (Smt.Latha) of PW.3 and took her and child along with him in a car and thereafter he committed the murder of her on the same day, after entering into conspiracy with Accused Nos. 2 to 4, at about 12.15 pm. on the way of Ilawala and Bilikere Road and thereafter, threw the dead body of the deceased in a valley by the side of the Road between Madikeri and Bagamandala and thereby they committed the offence alleged against them.
16. The trial Court after securing the presence of the accused persons, has framed the charges against the accused Nos. 1 to 4 for the offences punishable under Sections 302, 201, 364 r/w 34 of IPC and tried them for the above said offences.
17. The prosecution in order to bring home the guilt of the accused, examined as many as 38 witnesses as PWs. 1 to 38 and got marked the documents as Exs.
P.1 to P.91 and also marked Material Objects as MOs. 1 to 24. On the defence side also, Ex.D1 (copy of the judgment in C.C. No.1017/2011) and Ex.D2 (the statement of Dase Gowda) were got marked. The accused have also examined under Section 313 of Cr.PC., and they were called upon to enter the witness box to give defence evidence, if any, and as they did not choose to adduce any evidence, the trial Court, after hearing both sides, rendered the impugned judgment.
18. Before adverting to the appreciation of the evidence of the material witnesses, we also feel it just and necessary to have the brief cursory look at the evidence of the prosecution witnesses to ascertain, as to what the witnesses have deposed and on what material.
19. PW.1 - Dr.N.Rameshwar, who was a Senior Veterinary Doctor and neighbour of PW.3, has deposed with regard to his last seeing the deceased and the child along with the accused No.1 together on 29.06.2011 at about 12.00 hours in the afternoon in the quarters of PW.3 at Kalamandir Apartment at Mysuru.
20. PW.2 - Kum.Lavanya, who is also another neighbour, has also deposed similarly as deposed by PW.1.
21. PW.3 - M.D. Raghu, the complainant (husband of the deceased Latha) is the main witness to the prosecution. He has deposed about the motive and identification of the dead body of his wife Latha and with regard to lodgment of missing complaint and as well as identification of jewellaries belonging to his wife and he lodged a missing complaint, which is marked as Ex.P1.
22. PW.4 - Yogesh is a Petrol Bunk Cashier by name ‘GSR High Way’ situated at Bilikere, between Mysuru-Madikeri road. He has also spoken to about seeing Accused Nos. 1 & 2 when Tata India car of Accused No.1 had met with an accident on Hunsur Road, with a Maruthi 800 car, and identified Accused Nos.1 & 2 before the Court.
23. PW.5 - Puneeth Kumar is the person, who gave his Tata Indica car bearing No.KA.03/B-3843 to PW-6-Ajay Kumar and in turn P.W.6 handed over the said car to Accused No.1 on the date of the incident in question.
24. PW.6 - Ajaykumar is the cousin brother of Accused No.1 and as per the request of Accused No.1, he secured a Tata India car in question belonging to PW.5 and gave the same to Accused No.1, as he requested that he would like to go to Virajpet to attend a marriage function. He deposed about last seeing of Accused Nos.2 and 3 with Accused No.1 when the car was handed over to Accused No.1 and Accused No. 1 was driving the car, later he has also identified Accused Nos.1 to 3 before the Court.
25. PW.7 - Abhi @ Abhilash is the friend of PW.6, who accompanied PW.6 to meet Accused No.1 and Accused Nos.1 to 3 were present when the said Tata Indica Car was handed over to PW.6 (Ajay Kumar) on the same day in the evening.
26. PW.8 - Chandrashekar is a panch witness to Exs.P7, P8 & P9, under which, the police have secured the presence of Accused Nos. 2 & 3 at the instance of Accused No.1 and also seized the two wheeler (bike) and one Nokia Mobile Phone etc. He is also a witness to recovery of the dead body of the deceased Latha at the instance of all the accused. His evidence is also relevant and it will be in detail discussed later.
27. PW.9 - Mohammed Haneef is also a panch witness to recovery of gold jewelary viz., a gold long chain and two bangles under Ex.P10 which are marked at Mos. 2 & 3 and one Nokia mobile at the instance of Accused No.1.
28. PW.10 - Shivananda is also another witness to Ex.P11 Seizure Mahazar, under which the police have recovered two bangles, one each from Accused Nos. 2 & 3, which are jointly marked at MO.1.
29. PW.11 - K.P. Gangadhara is another panchwitness to Ex.P12 mahazar, the place of incident shown by Accused No.1, as the place where the murder was committed.
30. PW.12 - Lokesha is a panch witness for seizure of White Colour TATA Indica Car under a mahazar and also for recovery of Vanity Bag and the things in that bag under a mahazar (Exs.P14 & P15), the said articles seized are marked as MOs. 4, 5, 6, 14 & 15.
31. PW.13 - Shankarappa, who is a worker in a Petrol Bunk on Hunsur Road. He identified the accused persons who were there along with a lady and child in a TATA Indica Car on the day of the incident in question.
32. PW.14 - M. Lakshmana is a Police constable who also spoken about seeing of three persons (A.1 to A.3 and a women and child) on 29.06.2011 at about 8.00 a.m., in the car near Paduvarahalli Circle as the said car was parked by the side of the road. He told the accused persons to remove the same from the said place.
33. PW.15 - P.R. Ravishankar is the Assistant Engineer, who prepared the sketch of scene of offence as per Ex.P16.
34. PW.16 - N. Narayana, CDPO at Sulia has stated that, on 30.06.2011 working at Gonikoppa, a Police constable brought two and ½ year old male child by name Adarsh @ Adi and in fact this witness sent that child to Baby Welfare Centre at Mysuru under Exs. P19 and Ex.P20 which are the corresponding letters.
35. PW.17 - Smt. Nanda Prasad, who was working as a care taker of Baby Welfare Centre at Mysore. She has deposed that, on 30.06.2011 she received a child by name Adarsha from P.W.16 and they kept that child in their children care centre till 02.07.2011 and later handed over the said child to PW.3-M.D. Raghu on 02.07.2011.
36. PW.18 - Muralidhara is stated to be the neighbour of PW.3. He was examined as a panch witness to Ex.P3 mahazar, which was drawn near the house of PW.3.
37. PW.19 - Swamygowda a resident of Malangi Gomal Village. He is a witness to depose regarding the conspiracy between Accused Nos. 1 to 4, about 5 to 6 days prior to the incident. This witness has not supported the case at all.
38. PW.20 - H.T. Girishbabu is a Motor Vehicle Inspector and he has given an opinion with regard to TATA Indica Car bearing No.KA-03/B-3843 and issued a report as per Ex.P23 with regard to the damage occurred to the said vehicle.
39. PW.21 - D.M. Girish, working as Assistant Engineer attached to PWD has drew-up a sketch of the place called Chettimani on Madikeri-Bengaluru road, where the dead body was detected as per sketch Exs.P- 24 and P-25.
40. PW.22 - Somashekar, a witness examined to establish the conspiracy between Accused Nos. 1 to 4. But, he has turned hostile to the prosecution case and his relevant statement is marked at Ex.P-26.
41. PW.23 - V.T. Nagaraju, who is the maternal uncle of Accused No.1 was examined to show that, Accused No.1 was in his house on the evening of the date of incident and he also learnt about missing of the wife of PW.3 (M.D. Raghu) etc. But, he did not fully supported the case of the prosecution and the contradictions in his evidence are marked at Exs.P27 and P.28 (Statement of PW.23).
42. PW.24 - Jayamma is the elder sister of PW.3-M.D. Raghu. She has also not fully supported the case of the prosecution. But, she supported the case with regard to the motive in respect of talks of marriage between Accused No.1 and Shilpa.
43. PW.25 - Dr. Parvathi, who is the Medical Officer attached to the District Hospital at Madikeri, has conducted post-mortem examination on the dead body of Smt. Latha on 01.07.2011 and gave her opinion as per Ex.P31 that the death of the deceased was due to asphyxia, as a result of strangulation. She has also given her opinion with regard to a Belt (MO-20) opining that the said strangulation could be possible with the help of MO.20. The said opinion is marked at Ex.P32.
44. PW.26 - Siddaramegowda is a person who was the owner of a mobile, which was found with Accused No.1. It is his case that, the mobile was belonging to him and he has identified the application and Xerox copy of his election voter ID Card as of his and those were marked as Exs. P33 and Ex.P34. He was also not fully supported the case of the prosecution.
45. PW.27 - S.D. Sureshkumar, PSI attached to Gonikoppa Police Station. He has deposed that, on 29.06.2011 at 7.00 p.m., a person by name Manju brought a male child found in Gonikoppa and thereafter, the child was handed over to PW.21 and thereafter, PW.21 sent the child to the Children Welfare Committee at madikeri with a letter which is marked at Ex.P-18.
46. PW.28 - Girisha who was working as a Secretary in VSSN Association at Panchavalli. He has furnished details of the loan taken by PW.3 as requested by the Devaraja Police Station as per Ex.P- 36.
47. PW.29 - Thottalaiah, resident of Aaluru, Periapatna Taluk, has spoken about purchase of SIM Card No.8095414377 and subsequently selling the same to one Adithya (A.2) for a sum of Rs.1,000/-. He has produced the SIM Card purchase application and Voter ID Card Proof etc. and the same were marked at Exs.P-37 & P-38.
48. PW.30 - Smt. Sunitha is a sister of PW.3 – M.D. Raghu (complainant). This witness Smt.Sunitha is the mother of one Shilpa. She has spoken about the motive. But, she turned hostile. Her statement is marked at Ex.P-39.
49. PW.31-Manju is the resident of Gonikoppa.
He found the child of PW.3 (complainant) between 5.30 p.m. and 6.00 p.m. near Kavitha Stores, at Gonikoppa and he took the said child and handed over to the Police.
50. PW-32 Yogesh Gowda is the Photographer, who has deposed that, he was directed to come to the Devaraja P.S. by one Mr. Shanthamallappa and on such direction, he went to the said Police Station and thereafter had been taken by the Police to Madikeri and Bhagamandala road about 30 Kms. away from the said Police Station. Some Police staff and three accused were present there. He was asked to take the photograph of the dead body of a lady and accordingly, he has taken the photographs of the dead body of the lady and he prepared the CD and handed over the same to the Investigating Officer. The said CD is marked as MO.24.
51. PW.33 - Suresh is a Police Constable 200 of Narasimharaja Police Station, Mysuru. He was deputed for finding out the TATA Indica car bearing No.KA-03/B- 3843 which was used in this particular case for the purpose of investigation and he found the said car coming on Mysuru-Bengaluru highway. He intercepted the same and brought to the Police Station and he identified the car and stated that the said car was the same as in the photographs (Exs. P-4 to P-6).
52. PW.34 - Boraiah is the Police constable No.53, Devaraja Police Station, Mysuru. He has stated that, he took the dead body of the deceased Latha from Bhagamandala - Madikeri Road and shifted the dead body to the District Hospital for medical examination and he received the clothes of the deceased, one belt which was found on the neck and handed over the same to the Investigating Officer. The said articles were marked as MOs. 16 to 18 (clothes) and MO.20 (Belt).
53. PW.35 - B.K. Suresh Kumar, PSI, who has stated to have registered the complaint on 29.06.2011 at about 11.45 p.m., as per Ex.P4 in Crime No.133/2011 and dispatched the FIR to the jurisdictional Court. He also enquired Accused No.1 and recorded his voluntary statement and partially investigated the matter. We would like to discuss the evidence of this witness in detail, little later.
54. PW.36 - C.T. Jayakumara is the Police Constable working in the Technical Department of CCIB at Mysuru. He has given the call details of various mobile numbers as per Ex.P52 to 58 and pertaining to MOs. 21 to 23 after collecting the same from BSNL.
55. PW.37 - Puneeth was stated to have been working in a Foot Wear Shop. He has stated that one Mr. Haneef is the owner of the said shop. This witness has spoken about the selling of a belt (MO.20) to some customers, who are unknown to him. He has stated that, he cannot say that, the said belt was purchased from his shop or not. Because such belts are readily available in the market. He has not supported the case of the prosecution.
56. PW.38 - Shanthamallappa is the Police Inspector of Ashokpuram Police Station, Mysuru. He has stated that, he has taken over the case for investigation from PW-35 Sureshkumar and he thoroughly investigated the case and laid a charge sheet against the accused persons for the above said offences.
57. After appreciating the oral and documentary evidence on record, the trial Court in fact convicted Accused Nos. 1 to 3 for the aforesaid offences and acquitted Accused No.4 and further acquitted Accused Nos. 1 to 4 for the offence punishable under section 120(B) of IPC and sentenced Accused Nos. 1 to 3 for the offences noted above, which is under challenge before this court.
58. The entire case of the prosecution revolves around the circumstantial evidence. Admittedly, there is absolutely no eyewitness to the incident. The circumstances projected to be proved by the prosecution are as under:-
I. Homicidal death of the deceased II. Motive III. The accused and the deceased last seen together IV. Recovery of dead body at the instance of Accused Nos. 1 to 3.
V. Recovery of some Incriminating Gold Articles at the instance of Accused Nos. 1 to 3.
VI. Movements of the accused.
We would like to place on record the submissions made by the learned counsel for the accused and the learned Special Public Prosecutor in this regard as and when we discuss on the above cited circumstances.
59. HOMICIDAL DEATH OF THE DECEASED Though there is no serious dispute with regard to the homicidal death of the deceased, it is just and necessary to consider the grievance raised by the learned counsel so far as the homicidal death is concerned as he mainly concentrated with regard to the time of death.
60. The learned counsel contended that, according to the prosecution, the death of the deceased occurred or the incident taken place on 29.6.2011 at about 12.30 in the afternoon. The doctor PW-25 has stated that, the time of death is 36 hours prior to the Post Mortem examination. If the time of Post Mortem was (which was done on 1.7.2011) between 1.30 to 3.30 p.m., is taken into consideration, the death should have been occurred on 30.6.2011 at about 1.00 a.m., Therefore, the time of death is not co-incide with the Post Mortem examination report and the story of the prosecution. Be that as it may, we will consider this aspect little later. But the death of the deceased is not denied or disputed by the accused persons. The defence of the accused is that they are not the perpetrators of the crime. The witnesses in fact, PW-3 Raghu and who is the husband of the deceased has in fact, identified the dead body as that of his wife. PW-8 Chandrashekar a panch to a mahazar under which dead body was recovered, who saw the dead body alleged to have been shown by the accused persons and also a witness to the inquest panchnama marked at Ex.P-9 and he has stated about the injuries on the dead body of the deceased. The doctor PW-25 has in fact deposed before the court that he has examined the dead body of the deceased Latha on 1.7.2011 between 1.30 p.m., to 3.30 p.m., On examination he found, one injury and ligature mark extending all over the neck and also found fracture of hyoid bone on dissection. Thereafter, he gave his opinion as per Ex.P-31 (Prime Mahazar report) that, the death of the deceased was due to asphyxia as a result of strangulation. Therefore, when the opinion of the doctor is to the effect that the death was due to strangulation, the strangulation cannot occur without the participation of some third person. Therefore, some third human involvement is absolutely necessary for strangulating a person whether the accused are the perpetrator or not irrespective of that the prosecution in our opinion, has amply established that the death of the deceased Latha was homicidal in nature.
61. About the time of death, though there is some discrepancy, in the evidence of the doctor, but if it is seen properly, the doctor has confusingly stated that the death was occurred within 36 hours, but he has also stated that the time since death was more than 36 hours prior to Post Mortem examination. In the course of cross examination, the doctor has not been subjected to any questions with regard to the time of death.
Therefore, when the doctor has stated that the death is more than 36 hours old, the court can fix the time of death approximately depending upon the facts and circumstances of the case. The court has to ascertain the time of the incident on the other materials available on record. Therefore, we are of the opinion that the prosecution has successfully established the homicidal death of the deceased.
62. MOTIVE:
As per the case of the prosecution, the relationship between accused No.1 and the deceased and PW-3 play a dominant role. According to the prosecution, accused No.1 is no other than the brother’s son of PW-3. The prosecution has projected three important aspects with regard to the motive as spoken to by the various witnesses.
(i) Firstly, it is the case of the prosecution that, PW-3 has allowed A1 and his brother and his father to enjoy his share of the land to the extent of 8 acres. In this context, the deceased was not happy and she was raising voice that, accused No.1 and his father and his family members were becoming affluent and that they had purchased a house and car, but not giving the share of the crop to the PW-3 and his family members.
(ii) Secondly, it is alleged that PW-3 has taken a crop loan and he has not paid that crop loan to accused No.1 and his father and therefore, they were demanding an amount of Rs.50,000/-. In this regard, A1 must had the intention to cause some damage to the family of PW-3.
(iii) Thirdly and lastly, it is the case of the prosecution that there was marriage talks between A1 and the daughter of sister of PW-3 Sunitha, by name Shilpa. PW-3 and his wife (deceased Latha) have given a bad opinion so far as accused No.1 is concerned to Sunitha and for that reason Sunitha refused to give her daughter Shilpa in marriage to Accused No.1. In this context also accused No.1 in fact, had a doubt upon PW-3 and his wife deceased Latha. Therefore, these are all the motive existed in the mind of accused No.1 in order to take revenge against the deceased.
63. In order to prove the above said motive, the prosecution has mainly relied upon the evidence of PWs.3, 24 and 30.
64. The learned counsel for the accused/appellants strenuously contended that PW-24 Jayamma and PW-30 Sunitha so far as the motive for the breakage of marriage of accused No.1, and Shilpa is concerned have turned hostile to the prosecution. So far as the land dispute and share of PW-3 which was entrusted to accused No.1 and his father, there is no evidence, except the evidence of PW-3 which is also not sufficient to draw any inference. Even payment of Rs.50,000/- by PW-3 after obtaining the crop loan and the accused No.1 and his father demanding for further amount of Rs.50,000/- is also not supported by any other materials on record.
65. Per contra, learned Special Public Prosecutor argued that motive factor need not be proved beyond reasonable doubt if by preponderance, it is established that itself is sufficient to strengthen the case of the prosecution. The evidence of the above said witnesses particularly PW-3, there is no reason for him to falsely implicate the accused No.1. He has only suspected that on the above said motive, accused No.1 must have committed the murder of his wife.
66. In this context, the learned counsel relied upon a decision reported in (2011) 14 SCC 401 between Ajitsingh Harnamsingh Gujral and State of Maharashtra, wherein the Hon'ble Apex Court at Head Note (D) has observed that – “Circumstantial evidence – Motive - Relevant but not a sine qua non for conviction – Held, court has no means to enter into the mind of a person to find out motive. In some cases, only speculation may be possible - Case where there is no discernible motive but facts and circumstances overwhelmingly point to accused’s guilt – Conviction held, sustainable.
And further held that – “Men may lie, but circumstances do not. As to what motivated the appellant to commit this gruesome and ghastly act is impossible for the court to say because the court cannot enter into the mind of a human being and find out his motive. The court can only speculate.”
In another ruling reported in 2010 CRL.LJ 85 DELHI HC. in the case of Pradeep Nandrajog Vs. Ms. Indermeet Kaur, the Delhi High Court has observed at Head Note (G) that – “Motive – Circumstantial evidence - Absence of proof of motive becomes irrelevant where strength of other circumstantial evidence is sufficient wherefrom conclusion of guilt can be drawn.”
Therefore, motive is not an absolute requirement to be established before the court. But the court has to speculate and look into the overall evidence to ascertain whether there was any remote motive is in existence so as to implicate the accused that he has committed the murder of the deceased. Further added to that, motive factor can also be taken into consideration depending upon the other circumstances to ascertain whether the prosecution case is strengthened or weakened. In this background, we would like to discuss the evidence of PWs.3, 24 and 30.
67. PW-3 is no other than the paternal uncle of accused No.1 (father’s brother) and they lived happily till the death of the deceased. PW-3 has never made any allegations in the missing complaint against accused No.1 he did not know whether accused No.1 had taken his wife on the day of the incident along with the child. Only after coming to know that accused No.1 has taken the wife and child and subsequently the dead body was detected at the instance of the accused Nos.1 to 3, PW- 3 has suspected the above said motive may be reason for accused No.1 to take such decision to eliminate the deceased.
68. As could be seen from the evidence of PW- 3, so far as the above motives are concerned, he has categorically stated that he has got a share to the extent of 8 acres of land and the said land were in possession and enjoyment of accused No.1 and his father and they were enjoying the said property. In fact, his wife was objecting that they were enjoying the property without giving anything to the family of PW-3 and this was also disclosed by her in the presence of accused No.1 and his father at that time accused No.1 and his father were murmuring on the ground that PW-3 is sufficiently getting salary etc., This particular aspect has not been seriously disputed in the course of cross examination. On the other hand in the course of cross examination, it is re-iterated that on 12.5.2011 itself, PW-3 and his wife have told accused No.1 and his father to deliver back the land and property of PW-3. It is also stated that accused No.1 and his father were enjoying the property and they were taking all the crops grown by them in the said land. It is suggested that because PW-3 could not able to cultivate the land, the accused No.1 and his father were cultivating the land belonging to PW-3. Therefore, this clearly goes to show that, there is no denial so far as the possession of the said property is concerned by accused No.1 and his father and that they were cultivating the said land and it is their case that every year, accused No.1 and his father were giving some share in the yield to PW-3. When such being the case, there are chances of mis- understanding with regard to the above said factum as alleged against accused Nos.1 and 3. Out rightly it cannot be said that there are no differences between PW-3 and his family members on one side and accused No.1 and his father on the other side.
69. The second motive is with regard to the payment of an amount of Rs.50,000/- by PW-3 on taking crop loan in the bank. It is stated by him that he has taken loan in the Bank a sum of Rs.1,80,000/-. The accused persons have demanded out of that amount to pay an amount of Rs.1 lakh. But, PW-3 has paid Rs.50,000/-, the Accused No.1 and his father were not happy and still they were demanding an amount of Rs.50,000/-, but PW-3 refused for the same. Accused No.1 and his father have suspected the conduct of the deceased that, she must be poking her nose with reference to the transaction between PW-3 and accused No.1 and his father. So far as this aspect is concerned, in the course of cross examination, it is suggested that accused No.1 and his father have not given any permission to PW-3 to take the crop loan as there was no necessity for the same and they do not know about taking of crop loan and denied any amount being given by them. So far as these aspects are concerned, no further material has been placed by PW-3 in order to establish this particular factum. Therefore, so far as the second motive is concerned, there is no substantial evidence before the court, but fact remains that Accused No.1 and his father have questioned the taking of the loan by PW.3 without their permission. Therefore, it also smells some misunderstanding between them.
70. Last but not least, another important aspect is spoken to by PW-3 as to why the accused No.1 had grievance against the deceased. It is stated that himself and his wife had been to the marriage of one Jyothi D/o. Sharadamma. Sharadamma is no other than another sister of PW-3. In the said marriage, they have talked with Sunitha but not with reference to the marriage of accused No.1, but on the other hand, the deceased Latha questioned Sunitha as to why she is making unnecessary allegations against her, with reference to the marriage of accused No.1 and the D/o.Sunitha by name Shilpa. On the next day of the said marriage PW-3 and his wife had been to the house of his another sister by name Jayamma, at that time the mother of Accused No.1 was also with them. They all went to the house of another sister of PW-3 Sunitha and they told that if she want to conduct marriage of his daughter with Accused No.1 she can do so and PW-3 and his wife have no objection for the same, but there should not be any allegations against them. In that context, PW-3 has deposed that Sunitha herself has stated that accused No.1 failed in SSLC and Shilpa has completed her B.Com., and therefore, Shilpa herself was not willing to marry accused No.1. In the course of cross examination, PW.3 has re-iterated that they have not given any advise to Sunitha with reference to the marriage of accused No.1 and Shilpa, but in fact because of the talks that were taken place between PW-
3 and his sisters, accused No.1 himself has suspected that PW-3 and wife have given a wrong impression to Sunitha about accused No.1, because of that reason, the marriage was broken.
71. Of course, so far as these aspects are concerned, PWs.24 and 25 have turned hostile and they have not fully supported the case of the prosecution.
72. PW-24 Jayamma in fact has admitted that all of them had been to the marriage of Jyothi D/o. Sharadamma and they talked together and in that context, it is said that deceased was telling before this witness that unnecessarily accused No.1 has been suspecting the deceased that, she was responsible for the breakage of the marriage between accused No.1 and Shilpa. In fact, this witness enquired with PW-3 and his wife, but they told her that normally, the marriages should not be taken place in the blood relatives. Though this witness turned hostile but the talks that was taken place, is admitted by this witness.
73. PW-30 Smitha has in fact categorically stated that she never talked with PW-3 or his wife with regard to the marriage talks pertaining to accused No.1 and Shilpa and at no point of time, PW-3 and his wife have suggested this lady not to give her daughter to accused No.1. In the course of cross examination also, she has not stated that, she has taken any opinion from PW-3 and his wife with regard to the marriage of her daughter. Though she has stated in such a manner, the fact remains that, marriage talks between accused No.1 and Shilpa was not fortified for various reasons.
74. Therefore, the evidence of these witnesses cannot be outrightly rejected to hold that there was no such circumstance in the family. The evidence of PWs.3, 24 and 25 discloses that, there was some talks with regard to the marriage pertaining to accused No.1 and Shilpa, but accused No.1 has doubted the role of PW-3 and his wife in the breakage of the marriage of accused No.1 with Shilpa. The above said circumstance, in our opinion, though not so sufficient to draw an inference that the accused No.1 had such a strong motive to do away the life of the deceased, nevertheless some smoke was there in the families of accused No.1 and PW-3. Therefore, it cannot be said that the prosecution has not established the existence of any motive.
75. The existence and non existence of motive in a murder case, will not in any manner decisively decide a case. If the motive is strong enough and established that will strengthen the case of the prosecution and corroborate the other evidence on record. If the prosecution through other evidence is able to prove the case against the accused, the court can make use of the motive for the purpose of ascertaining the gravity of the case. Therefore, we are of the opinion that the prosecution has also established the existence of some motive on the part of accused No.1.
76. LAST SEEN THEORY AND THE CONDUCT OF THE ACCUSED:
The last seen theory so far as this case is concerned is dependent on various factors as projected by the prosecution.
77. It is the case of the prosecution that, on the date of incident in question, between 6.30 am to 7.00 am, Accused No.1 requested PW.6-Ajay Kumar, who is no other than his cousin brother to secure a car, which is having cooling glass to the windows, for the purpose of going to Virajpet for attending a marriage. Accordingly, PW.6 requested PW.5 –Puneeth Kumar to provide his car (TATA India Car) bearing Registration No.KA.03.B.3843 and PW.5 agreed for that. Accordingly PW.6 secured the car. Thereafter at about 9.30 a.m., he went to Hunsuru as per the direction of Accused No.1 handed over the said car to Accused No.1, at that time, he observed that, Accused Nos. 2 & 3 came to that spot on a motor cycle. Accused Nos. 1 to 3 took that car and in fact PW.6 came back on the motor cycle brought by Accused Nos. 2 & 3.
78. It is the further case of the prosecution that, at 11.00 a.m., Accused Nos. 1 to 3 had parked the car on the left side of Mysuru – Hunsuru road near Paduvaralli Circle. Out of three accused one person (A- 1) went towards Valimiki road and thereafter some time, he came back with a lady and a child and all of them boarded the said car and the car proceeded towards Hunsuru. At that time, PW.14 – M. Lakshmana the constable, who was working at Paduvaralli Circle, identified Accused Nos. 1 to 3 as the same persons and Accused No.1 was the person who brought the lady and child to the car on that day.
79. It is the further case of the prosecution that, on the same day, at about 12.00 noon, PW.1 who was in Mysuru Kalamandira Residential Complex, he saw Accused No.1, who was known to him earlier, taking the wife of PW.3 (deceased) along with the child and Accused No.1 was holding the said child with him. On the same day, approximately at about 11.30, the child of the deceased and PW.3 was left in the house of PW.2-Kumari Lavanya and it is the case of the prosecution that, the deceased had been to the house of PW.2 and told her that, her brother-in-law’s son had come to her house and that they were proceeding to Hunsuru for the purpose of purchasing some gold articles and by saying so, the deceased took the child along with her. Further, on the same day at about 12.15 in the afternoon, when PW.2 was in the ground floor of the said house for the purpose of disposing of the waste of her house, she saw Accused No.1, deceased and the child were going towards the main door of the said complex.
80. It is the further case of the prosecution that, thereafter, the accused No.1 took the deceased along with Accused Nos. 2 & 3 to the place of incident and committed her murder and thereafter at about 12.00 noon, he called PW.6 over phone to go over to Gonikoppa and stand near the Bus Stand. In the meantime, between 12.00 and 1.30 p.m., the said car was taken by Accused Nos. 1 to 3 along with the deceased and the child towards Hunsuru Road and PW.13 has seen the said car near University Campus Petrol Bunk on Mysuru-Hunsuru Road and Accused No.2 was driving the said car at that time. It is the further case of the prosecution that, as per the request of Accused No.1, PW.6 – Ajaykumar along with PW.7 – Abhi @ Abhilash went to Gonikoppa at about 6.30 p.m.
and Accused Nos. 1 to 3 came there and Accused Nos. 2 & 3 went from that particular place on their Pulsar bike. Accused No.1, PW.6 and PW.7 went in the car, but at Ponnampet, Accused No.1 got down and at Kothnur, he went in a bus. Then PW.6 informed PW.5 to take the car back at Ilawala and accordingly, PW.5 came there, handed over the motor cycle of PW.6 and there after, PWs. 6 & 7 came back on the said motor cycle. So the above said factual aspects are relied by the prosecution to prove the last seen of the accused persons with the deceased and the child while going they were also seen by PWs. 13 - Shankarappa & 14 – M. Lakshmana and there after they were also seen by PWs.6 & 7 after incident.
81. Now we will consider the evidence of the above said witnesses in detail to ascertain, whether the prosecution has proved the last seen theory and the conduct of the accused.
82. Sri.Hashmath Pasha, learned Senior Counsel for the appellant submitted that, the evidence of the above witnesses is not so reliable, particularly, PW.2 and PW-1 have not disclosed the factum of they witnessing Accused No.1 taking the deceased along with him, at the earliest point of time, though they had an opportunity to disclose the same to PW-3. There is no whisper in Ex.P-1 (complaint) lodged by PW.3 with regard to the disclosure of the last seen of Accused No.1, deceased and the child together. If the said fact is true, the same would have been find a place in Ex.P-
1. Even in Ex.P51 (FIR), there is no reference of PW-2 Lavanya disclosing the above said factum, but she only disclosed the said fact on 01.07.2011. The other witnesses have not specifically spoken about the last seen of Accused Nos. 1 to 3 with the deceased and as well as the child. They never spoken about with whom they had seen Accused Nos. 1 to 3 at any point of time, except stating that a lady and a child was there. But they never identified the said lady and child as that of the deceased and her child. Therefore, the last seen witnesses appears to be the planted witnesses subsequent to initiation of the complaint by PW.3.
83. Per contra, the learned Special Public Prosectuor has argued before the court that, if the evidence of these witnesses is meticulously and carefully looked into, it clearly discloses that, as soon as they were enquired by PW.3 after due search of the deceased and the child by PW.3, these witnesses (PWs. 1 & 2) have disclosed the said factum of they witnessing Accused No.1 taking the deceased and the child along with him. There is no evidence that, PW.3 met the witnesses (PWs. 1 & 2) at any point of time, prior to lodging a missing complaint, so that these witnesses could have disclosed the same. There is a total absence of the cross - examination on this point in the evidence of PWs. 1 & 2. Therefore, there is a strong evidence of PWs. 1 & 2 with regard to the Accused No.1 and the deceased last seen together. Though the other witnesses have not specifically stated about the identity of the deceased and the child, nevertheless, the other witnesses have also spoken about Accused Nos.1 to 3 were seen together at the relevant point of time along with a lady and a child and Accused No.2 was driving the vehicle at that relevant point of time. Therefore, the learned counsel submitted that, the over all view of the case has to be taken into consideration to ascertain this particular last seen incident, which definitely throw onus on the accused persons to explain as to what happened after Accused No.1 taking the deceased and the child along with him.
84. Before adverting to the evidence of these witnesses, it is worth to note here a decision of the Hon'ble Apex Court reported in 2014 (3) Crimes 416 (SC) [Mahavir Singh Vs. State of Haryana], wherein at Para-13, it has been observed that,-
“13. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised later”.
The appreciation of evidence should be on the basis of the same standard and the court should bear in mind that the minor discrepancies bound to occur in any trial and such minor discrepancies have to be ignored, if the core of that particular circumstance is not disturbed in the course of cross examination bearing in mind the above said principle, now we would like to discuss the evidence of the above said witnesses with regard to the last seen incident.
85. PW.6-Ajay Kumar has deposed that, he is the relative of Accused No.1-Manjunath, who is no other than his cousin brother. PW-6 has categorically deposed that, on the date of the incident, the accused requested him to provide a car with cooling glass to the windows. Thereafter, this witness has secured the car from PW.5 and went to Ilawala with that car and contacted Accused No.1 and in turn Accused No.1 told him to take that car to Hunsuru KSTRC Bus Stand. Accordingly, PW-6 took the car at to the said place at 9.30 am. Thereafter Accused No.1 came there and along with him Accused Nos. 2 & 3 also came to that particular place with their Pulsar Motor Cycle. PW-6 took that Pulsar Motor Cycle and handed over the car to Accused No.1 and all of them went in the said car. This particular witness (PW-6) has categorically stated that, he saw Accused Nos. 1 to 3 together going in that particular car bearing No. KA.03.B.3843 - TATA Indica Car. He has also deposed that, at about 12.00 noon, Accused No.1 again called this witness over telephone and asked this witness, where he was and again at 1.15 p.m., Accused No.1 called this witness over telephone and at that time, Accused No.1 was little bit frightened and he told that there was a small accident to the car and thereafter, again Accused No.1 asked PW.6 to go over to Gonikoppa to take back the car, from the place where he parked the car and again PW.6 went to Gonikoppa on Pulsar Motor Cycle. However, Accused No.1 did not come there. Again he asked PW.6 to go over to Ponnampet road where he has parked the car. Accordingly, he went to Ponnampet and found the car parked on the side of the road and at about 6.30 p.m., Accused Nos. 1 to 3 came to that particular spot and PW.6 identified them and thereafter Accused Nos. 2 & 3 went on the Pulsar Motor Cycle, which was brought by PW.6 to that particular place and thereafter Accused No.
1 and PW.6 went in the said car. Accused No.1 got down from the car at Kothur and went in Bus and thereafter this witness (PW-6) brought back the car and handed over the same to PW-5. So, in the evidence of PW.6 he has categorically stated that at 9.30 a.m. on the date of incident, he saw Accused Nos.1 to 3 together and also at 6.30 p.m., they came back together on that particular day. This evidence is also fully corroborated by the evidence of PW-5 Puneeth Kumar. He stated that he gave the said car to PW.6 on that particular date and he has taken back the said car thereafter. He has also stated that there was some damage to the car and in fact, he has received an amount of Rs.1,475/- towards the rentals of the said car.
86. In the course of cross-examination, nothing much has been elicited from the evidence of PW.6. He has confirmed in the cross examination that, he has paid the said rental amount to PW-5 at Gonikoppa and it was suggested that, he has not stated the said fact before the Police but the said suggestion was denied. It is also stated in the cross - examination that, he has not exactly examined the car whether it was damaged when he has taken car from Accused No.1 at Gonikoppa. He has also stated that, he knew PW.3-MD Raghu, but he has not talked with him at any point of time. Though he has stated that, he do not remember the car number, again after remembering, he stated the car number as KA-03/B-3843. It was suggested to him that, because of he is very close to PW-3, he is deposing falsehood against the accused persons. Except that said suggestion, nothing has been elicited as to why the evidence of this witness has to be disbelieved. He is more close relative to Accused No.1 than PW-3. There is absolutely no reason for this witness to falsely implicate Accused Nos. 1 to 3 into the crime in any manner. He never stated falsely anything about Accused Nos. 1 to 3 were with the deceased and her child. Whatever this witness has done in connection with this case, he has promptly stated before the court. Therefore, Accused Nos. 1 to 3 were seen together on the date of the incident in the morning at 9.30 (before the incident) and also in the evening at 6.30 (after the incident) and Accused No.1 taking the car on that day has been established by the prosecution.
87. As we have already narrated, PW.14 – M. Lakshmana is the next person, who has seen Accused Nos. 1 to 3 and also a woman and a child with Accused No.1 on that day. PW.14-M. Lakshmana has actually deposed before the court that, on 29.06.2011 he was on duty at Paduvarahalli Circle as a Traffic Police and he observed that at about 11.00 am., a white colour TATA Indica Car was proceeding towards Hunsuru and was parked near the said circle and three persons got down from the said car and one person went towards Valmiki Road and other two persons went towards Paduvaralli. Later, those two persons came back. By that time, this Police man has observed that the said vehicle was parked there and he told those two persons to remove the car from that place. Then, those persons have told the Police man (PW-14) that, they will remove the car within one or two minutes, because they are waiting for somebody. About half an hour later, another person, who went towards Valmiki Road came back with a lady and child. They all sat in the car and the car went towards Hunsur. This Police man has identified Accused No.1 as the person, who brought the said lady and child with him and he has also identified Accused No.2 as the person, who was driving the car on that day and he has also identified the car in the photographs marked at Exs.4, 5 and 6.
88. In the course of cross-examination, though he has stated that, Accused No.1 was wearing jeans pant and full-arm shirt, but, he could not able to say the clothes worn by Accused Nos. 2 & 3, but specifically he stated that the lady who came along with Accused No.1, was wearing Red Colour sari. This has been fully supported by PWs. 1 to 3 also. But PW-14 says that, he has not informed the same to anybody until it was asked during the course of Investigation by the Investigating Officer. Nothing much has been elicited in the course of cross-examination and even it was not suggested to him that, he has not seen Accused Nos. 1 to 3 and a lady along with a child on that particular day. Even there is no material elicited as to why he should say lie before the court and was there any influence or force upon him by any body to say so.
89. Though the learned Senior counsel Sri.
Hashmath Pasha, argued that, PW.3 was working as a Assistant Public Prosecutor, he must have persuaded this man, but there was not even single suggestion made to this witness in that regard. Of course, the court can visualize that, he being the Police, he may not be in a position to recognize any person, because hundreds of persons may use that road at that particular point of time. But the circumstances altogether are different sofar as this case is concerned, because, he observed that the said car was parked on the side of the road of Paduvaralli Circle, actually where he was posted to perform his duties and he wanted to get that car removed from that place so as to clear the traffic problem. In this connection, he has also specifically talked with Accused Nos. 2 and 3. Therefore, that may be the strong reason of this person recognizing and identifying the Accused Nos. 1 to 3 on the said particular date. Therefore, in our opinion, there is no strong reason to totally discard the evidence of this witness. Hence, the prosecution in the sequence of events has established this particular factum also.
90. Now coming to the other two important witnesses who have last seen the accused and deceased together, PW-1 Rameshwar is the person who was residing in the same housing complex, where PW.3 and his wife were residing. He stated that he had occasions to see the deceased Latha and also PW.3. This witness was residing in ‘F’ Block, PW.3 and his family members were residing in ‘G’ Block in the said Kalamandira housing complex. He has also deposed that, he knew Accused No.1 because, PW-3 introduced Accused No.1 to him in connection with purchase of a Cow. Therefore, Accused No.1 was not a stranger to this witness. In this background, he has specifically deposed that, on 29.06.2011 i.e., on the date of the incident at about 12.00 noon, he was standing in the portico of his house and at that time he saw Accused No.1 and the deceased Latha, the wife of PW-3 along with her child proceeding in front of the house of this witness to go out from the housing complex. Accused No.1 was holding the child with him. He has also deposed that, normally he used to go to the office in the morning at 8.30 a.m., and come back to the house in the evening between 3.30 and 5.30 p.m. On that particular day, he had some work in the Central Office, therefore, he had gone to the Central Office and after completing the work, he wanted to fresh-up and then go to his office again. Therefore, he had come to the house and as such, on that particular day, he saw Accused No.1, deceased and child together. He has also further stated that, on the next day morning when he was getting ready to go to the office, some people were talking that the wife of PW.3 and child were missing. But, he did not inform PW.3 about he seeing the wife of PW-3 and his child along with Accused No.1 on the previous day. But he never said he met P.W.3 on that day on the next day.
91. In the course of cross-examination much has been concentrated with regard to why PW.14 did not inform the said fact to PW.3, about he seeing the deceased and her child with Accused No.1 on the previous day, even though he having come to know that the wife and child of PW.3 are missing. In course of cross-examination, he has stated that, Accused No.1 was wearing full-arm shirt and wife of PW.3 was wearing Red Colour Sari. The colour of sari as ‘Red’ has been consistently stated by almost all the witnesses, who saw the lady on that particular day. Again it is elicited that, though on 30.06.2011, the people were talking about the missing of the wife of PW.3, but he did not tell anybody about Accused No.1 taking the said lady along with him. But he has stated before the Police after 7 or 8 days in the Police Station about the said fact. But, he has further explained that, when the people were talking about missing of the wife and Child of PW.3, he has told that Accused No.1 has taken the deceased along with him to the persons who were gathered there, but not to PW.3. Perhaps, may the reason, in our opinion, Accused No.1 and PW.3 are close relatives and Accused No.1 was visiting the house of PW.3 often and in that relationship, he might have taken her with him. Therefore, he might not have found it serious to disclose the same to PW.3. Again, in our opinion, it all depends upon the nature and conduct of the persons, if they do not want to indulge themselves in a crime, but ultimately, during the course of investigation, the Police came to know that the said person is also a witness to that circumstance and only then, they may disclose that, what actually they have seen. Even in the course of cross-examination, for all these witnesses, nothing has been suggested that, PW.3-M.D Raghu met this man (PW.14) at any point of time after missing of the deceased Latha and Child so that though this man had opportunity to disclose it to PW.3, he had not disclosed the same. Again there was no suggestion in the course of cross-examination to PW.1 to discredit his evidence, as to why has to say lie before the court in order to falsely implicate Accused No.1. Further added to that, there is no dispute that, PW.1 was the resident of the said complex, therefore, there is possibility and probability of this witness witnessing the deceased and the Accused No.1 together.
But he might have felt that it is the normal conduct of the parties, particularly relatives going together. Therefore, in our opinion, the evidence of this witness cannot be outrightly rejected.
92. Another important witness is PW-2 Kumari Lavanya. She was also residing in the same housing complex where the family of PW.3 was residing. She was residing along with her mother and brother in ‘G’ Block of the housing complex and she had failed in II PUC, therefore, she always used to be in the house. In this context, she has also deposed that, she has seen the deceased Latha and her child along with Accused No1, who was often visiting the house of PW-3. In this background, she has deposed that, on the date of the incident on 29.06.2011 before 11.30 am., the deceased Latha had left the child in the house of this witness (PW-2) and at about 11.30 a.m., the deceased Latha had come to her house and took away the child stating that, they were proceeding to Hunsuru for the purpose of purchasing some gold ornaments. She further deposed that, at about 12.00 noon on that day, when she was gone to the ground floor of the housing complex for the purpose of disposing the garbage, then she saw that, the deceased Latha and her child along with Accused No.1 were proceeding out from the said housing complex by getting down the stairs. She has identified Accused No.1 as the same person, who took the deceased Latha and her child with him. She had candidly identified Accused No.1 because, earlier two or three times, she had seen Accused No.1 in the house of the deceased Latha. PW-2 has also stated that, on the next day morning, PW-3 M.D.Raghu came to her house and asked her whether she had seen the deceased Latha and the child. Then she told about the factum of Accused No.1 taking the deceased Latha and the child along with him. Her statement was recorded on 01.07.2011 and she has disclosed the same to the Police and also identified Accused No.1 before the Police, when Accused No.1 was shown to her by the Police.
93. Very peculiarly enough, the factum of this witness (PW-2) seeing Accused No.1 and in detail telling about the incident has not been much denied. On the other hand, it is elicited in the course of cross- examination about the colour of the sari the deceased Latha was wearing when this witness (PW-2) saw her lastly. For that, PW-2 has categorically stated that, the deceased Latha was wearing Red Colour Sari and Accused No.1 was wearing full-arm shirt. This particular aspect is corroborated by other witnesses (PW-14 & PW- 1). As we have already noted, it was suggested to PW-
2 Kumari Lavanya that, on 30.06.2011, PW-3 M.D. Raghu has tutored her to state in such manner before the Police, but she denied the same. Therefore, the elucidation of factual aspects in the course of cross- examination, with regard to she witnessing Accused No.1 for two or three times in the house of deceased Latha and also the deceased Latha and her child gong along with Accused No.1 on that day is not much controverted in the course of cross-examination. Except the said suggestion, in our opinion, the cross examination is very bald and it was not suggested to her that, immediately after she came to know that the deceased Latha was missing, she did not disclose the same to PW-3. Therefore, in our opinion, the prosecution has also connected the last seen theory by establishing the same from the evidence of this witness.
94. Another important aspect is with reference to the evidence of PW-13 Shankrappa, who has actually seen Accused Nos. 1 to 3 along with the child in the afternoon of the date of incident. PW-13 deposed that, he was working as a cashier in University Campus Petrol Bunk situated at Mysuru-Hunsuru road. He further deposed that, about 2½ years prior to his evidence before the court, he saw Accused Nos. 1 to 3 between 12.00 and 12.30 in the afternoon. On that day, they brought a TATA Indica Car for the purpose of filling diesel, to the petrol bunk, where he was working. He has also deposed that, apart from Accused Nos. 1 to 3, a lady and a child were also sitting in the back seat of the car and Accused No.1 was driving the car. He came to know about the death of the said lady through news in the television and also the photographs of Accused Nos.1 to 3 shown in the television. Therefore, he remembered those persons viz., Accused Nos. 1 to 3 as the persons, who filled the diesel to the car in the said petrol bunk. In the course of cross-examination., in our opinion, nothing much has been elicited, except that, after filling-up of diesel, he has not given the bill to Accused Nos. 1 to 3. He gives explanation that, normally they would not issue bill/receipt and if the customers ask for bill, they will issue bills. He also stated that, if they prepare the bill, then only they will note down the registration number of the vehicle in the Bill. He further stated in the course of cross- examination that, when the car was brought to the petrol bunk, the glasses of windows of the car were slided down, therefore, he could able to see all the persons sitting in the car. Except a casual suggestion that, he never seen Accused Nos. 1 to 3, the deceased and the child in the car, nothing has been elicited in the course of cross-examination. What is the benefit for this man gets if he gives such evidence by falsely implicating the accused persons, is not shown to the court. In the absence of elucidation of any such facts, merely because this witness has not given the bill for having filling the diesel to the said car, his evidence cannot be discarded, because he has given explanation that, the photographs of Accused Nos. 1 to 3 were shown in the television, and therefore, he remembered that Accused Nos. 1 to 3 are the same persons, who got filled diesel to the car in question, in his petrol bunk.
95. In the above context, examining the above said evidence meticulously and in detail, of all the above witnesses, in our opinion, the prosecution has successfully established the sequence of events regarding the last seen theory with regard to Accused No.1 since from the morning of the said day what he has done and it is established that Accused Nos. 1 to 3 have actually taken the deceased and the child along with them. Therefore, in this context, if other circumstances are also corroborate the last seen theory, in such an eventuality, it becomes the responsibility of the accused persons to explain as to what happened after they took the deceased Latha and her child along with them. Therefore, we are of the considered opinion that the prosecution has proved the last seen theory and also the conduct of the accused persons, as projected by the prosecution.
96. RECOVERY:
It is the case of the prosecution that the accused Nos.1 to 3 particularly have given their voluntary statements and on the basis of the voluntary statements, the dead body of the deceased was detected and discovered and further, from accused No.1 a golden chain and two bangles and one mobile were recovered particularly the said gold chain and bangles were identified by PW.3 as the articles belonging to the deceased. On the basis of the voluntary statements of accused No.2 and accused No.3, two bangles were recovered one each from accused No.2 and accused No.3 and thereafter, an Indica Car and a vanity bag were also recovered and the said Indica Car was alleged to have been used for the purpose of committing the offence. The vanity bag was also belonging to the deceased and the same was recovered at the instance of the accused, and identified by PW.3.
97. Before adverting to the above said recovery, it is just and necessary to bear in mind the submissions made by the learned counsel for the accused and the learned Special Public Prosecutor. It is argued by the learned counsel for the appellants Sri Hashmath Pasha, the voluntary statement of the accused particularly A1 was not in the nature of voluntary statement, but it is in the nature of a Suo-moto complaint by the Police as per Ex.P-43. There is no material as to how the accused No.1 was secured, except this statement on which a suo-moto case was registered against the accused, no separate statement of Accused No.1 was recorded or produced. Therefore, the accused No.1 was not in the custody of Police at the time of so called statement of the accused. Further, the voluntary statement of Accused No.2 and accused No.3 as could be seen were recorded after the registration of the case. The learned counsel also contended how the Police could mention a Crime No.133/2011 against accused No.1 in the absence of any allegations against him in the earlier complaint filed by PW-3 which was a missing complaint registered by the Police and on the basis of Ex.P-43, the alleged voluntary statement of the accused, a suo-moto complaint was filed by the Investigating Officer as per Ex.P-50. Therefore, any recovery at the instance of the accused No.1 is not in accordance with law.
98. It is further contended by the learned counsel that, soon after the accused were arrested instead of detecting the body of the deceased., some recoveries have been made at the instance of the accused No.1 and thereafter proceeded to recover the dead body. There is no question of discovery of any fact regarding the dead body of the deceased at the instance of the accused Nos.2 & 3 because the said fact was already discovered at the instance of the accused No.1. Therefore, the said recovery of dead body at the instance of the accused Nos.1 to 3 is also fallacious.
99. It is further contended by the learned counsel that, a joint recovery was made at the instance of the accused persons is not admissible in law. There is no mention in the inquest report that the dead body was recovered at the instance of the accused. The learned counsel also contended that the recovery of the gold articles at the instance of the accused Nos.1 to 3 are all planted by PW-3 as he was working as APP by using his influence. Therefore, such recovery as projected by the prosecution is not tenable. In this regard, learned counsel also relied upon several decisions which we are going to consider little later.
100. Countering the above said arguments, learned Special Public Prosecutor has contended that, accused No.1 was actually on the basis of suspicion secured by the Police and his statement was recorded, then only the police came to know about his involvement in the crime and simultaneously, a case has been registered virtually on the basis of such voluntary statement though Ex.P-50 shown that it is the complaint suo-moto lodged by the Police Officer. Though, there is a mistake in registering the case after recording the statement of the accused, but the same has been done simultaneously, it is only an irregularity, the same cannot be used for the purpose of totally discarding the contents of the said voluntary statement of the accused in turn to discard the recovery. The voluntary statement of Accused No.1 led to the Police to arrest A2 and A3. When it is stated in Ex.P-43, the voluntary statement of A1, the involvement of A2 and A3, the Police have after arrest of A2 and A3 have also recorded their statements to get the confirmation about the voluntary statement of accused No.1. Though it is in the nature of a joint or simultaneous statements of A1 to A3 and they have given their voluntary statement, re-iterating the place where the dead body was thrown. Therefore, such recovery at the instance of the accused Nos.1 to 3 is not bad in law.
101. It is further contended that there is no other statement recorded sofar as the accused No.1 is concerned. Exs.P-43 to P-49, out of that only the relevant portion is admissible with regard to the recovery of the dead body and as well as the gold articles and a mobile at the instance of the accused No.1. Though some other irrelevant portions are also marked, they will become redundant for consideration, and in fact not considered by the trial Court. Lastly, it is also contended that the evidence of the Investigating Officer as well as the evidence of the other witnesses for recovery, they have fully supported the case of the prosecution. Therefore, there is a strong circumstance established i.e., recovery of the dead body and the gold articles at the instance of the accused Nos.1 to 3 which belonged to the deceased went un-explained by them. Therefore, it is a strong circumstance against the accused persons. There is no explanation by any of the accused persons as to how they possessed the property of the deceased. Though PW-3 is a Assistant Public Prosecutor, there is no semblance of material to show that as to why he has to falsely implicate accused No.1, who is no other than his own brother’s son. Till he come to know about the fact that the deceased on that particular day of the incident went along with accused No.1, PW-3 never made any allegations against any of the accused persons. Therefore, the natural events those have taken place, have been spoken to and acted upon by PW-3. there is no room to disbelieve the case of the prosecution when it is proved with the other materials on record beyond reasonable doubt.
102. In the wake of the above said submissions, now we would like to consider the legal question that has been raised by the learned counsel with regard to the admissibility of the voluntary statement of accused No.1 particularly.
103. It is contended that accused was not in custody of the Police and no case was registered against him when his voluntary statement was recorded. Ex.P-
43 to 49 are the marked portions in the voluntary statement of accused which was recorded on 30.6.2011. Out of that Ex.P-49 only refers to the dead body and as well as the gold articles and also disclosing the involvement of the accused No.2 and accused No.3. The other portions are as rightly argued by the learned Special Public Prosecutor are not relevant because they do not amounts to discovery of any fact. ON the same day, i.e., on 30.6.2011 on the basis of the voluntary statement of the accused, the Police Sub Inspector lodged a Suo-moto complaint as per Ex.P-50 and on the basis of which a crime earlier registered has been continued. Therefore, the arguments of the learned counsel that mentioning of the crime No.133/2011 in the voluntary statement of the accused without registering a case against the accused is not correct because the case No.133/2011 was registered earlier on the basis of a missing complaint lodged by PW-3. Even otherwise, when the Police have prepared both Ex.P-50, and P-43 to 49, on the same day at the same time, simultaneously there may be some lapse in mentioning the said course number, perhaps immediately after recording the voluntary statement of Accused No.1, the Police Sub-Inspector has also prepared Ex.P-50, perhaps in the over anxiety, the said number might have also been mentioned as Crime No.133/2011 against accused Nos.1 to 3 for the offence punishable under section 364, 302, 201 read with Section 34 of IPC. Therefore, it is an irregularity committed by the Police Officer. He would have simply enquired the accused and thereafter registered a case and thereafter, he would have recorded the voluntary statement of accused No.1. Though it is not done in sequence-wise, in our opinion, it will not take away the substance of the prosecution case. Therefore, the said argument in our opinion is not proper and not acceptable.
104. In this context, though the learned counsel has relied upon various rulings particularly in Manoranjan Singh vs. State of Delhi reported in AIR 1998 SC 2811, wherein the Hon'ble Apex Court has observed thus:
“We find that no offence was registered against the appellant when he was taken to the Police station for interrogation nor was any accusation made against him, he was not in custody of the Police when he made the disclosure statement. Therefore, Section 27 was not applicable in the case and recovery should not have been treated as having been made on the basis of the disclosure statement of the appellant.”
105. In another ruling, reported in AIR 2002 SC 3272 between State of Karnataka and David, the Hon'ble Apex Court has made similar observations. Therefore, the rest of the decisions quoted, in our opinion on the same point may not necessarily be quoted.
106. Even accepting the above said decisions, in our opinion, on the basis of the Suo-moto complaint lodged by the Police as per Ex.P-50 and thereafterwards, the accused Nos.2 and 3 were also arrested and their voluntary statements have been recorded so far as recovery of dead body is concerned. Accused Nos.2 and 3 have also disclosed the said factual aspects. Even considering to that effect as argued by the learned counsel for the appellants, that Accused No.1 was not in custody but the same principle is not applicable so far as accused Nos.2 and 3 are concerned. Hence, on overall reading of the voluntary statements of accused Nos.1 to 3, as per Exhibits P-59 to 67 of accused No.2, Exhibits P-68 to 73 of accused No.3 is not hit by the above said principles argued by the learned counsel.
107. The next question arises with regard to the joint recording of the statement of accused Nos.1 to 3 though separately recorded, but the discovery of facts are one and the same. In this regard, learned Special Public Prosecutor has cited a ruling reported in (2017) 2 SCC Krishna Baliga vs. State of Maharashtra stating that simultaneous recording or joint recording of the statement would not vitiate the proceedings.
108. In this regard, the learned SPP has cited a ruling reported in AIR 2005 SC 3820 between State (NCT of Delhi) and Navjyoth Sandu, wherein the Hon'ble Apex Court at Head Note-N has categorically observed that,-
Evidence Act (1/1872), Sec.27- Scope – Pointing out material object by accused furnishing information – Is not necessary concomitant of S.27. – Pointing out a material object by the accused furnishing the information is not necessary concomitant of Sec.27. Though in most of the cases the person who makes the disclosure himself leads the Police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recovery of the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of incriminating article and the knowledge of the accused furnishing the information about it. In other words where the information furnished by the person in custody is verified by the Police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Sec.27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence (Para-13).
(Emphasis Supplied) 109. It is also worth to note here, another ruling of the Hon'ble Apex Court reported in 2017 (2) SCC (Cri) 262 [Kishore Bhadke and State of Maharashtra], it is called as parliamentary attack case. In this case also, the Hon'ble Apex Court has dealt with the joint disclosure by two or more accused in police custody.
110. The Hon'ble Apex Court virtually dealing with Section 27 of the Indian Evidence Act has also relied upon a decision of the Hon'ble Apex Court reported in (2002) 8 SCC 45 between Bodhraja @ Bodha and others and State of Jammu and Kashmir in order to explain when actually Section 27 of the Act would come into operation, wherein the Hon'ble Apex Court has observed that,-
“The object of Sec.27 was to provide for the admission of evidence which but for the existence of the section cold not in consequences of the presiding sections be admitted in evidence.
Under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the Police. The requirement of Police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a Police officer or voluntarily goes to him or to the Police station and states the circustaances of the crime which lead to the discovery of the dead body, weapon or any other fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Sec.27 if the information did not come from a person in the custody of a Police officer or did come from a person not in the custody of a Police officer.”
(Emphasis Supplied) 111. The learned Senior counsel Sri Hashmath Pasha, has pressed into service the above said decision and submitted that in this particular case, Ex.P-43 which is the voluntary statement of accused No.1 has been recorded even much prior to the registration of the case against him and he was not even cited as an accused. Therefore such recording of the statement cannot fall u/s.27 of the Act and whatever the subsequent act done in pursuance of the same, cannot be taken into consideration.
112. This court has to examine whether the accused was in custody of the Police Officer or not? In this regard, it is just and necessary to have the brief factual matrix of the case that emanate from the records and from the evidence of PWs.35 and 38 who are the Investigating Officers in this case as to how they secured the presence of the accused and what they have done.
113. PW-35 B.K. Suresh Kumar has deposed before the court that, on 29.6.2011, he was the Officer in charge of Devaraj Police Station in Mysuru. PW-3 M.D. Ragu came to the Police Station and lodged a missing complaint as per Ex.P1 stating about the missing of his wife and child, on the basis of which, PW- 35 registered a case in Crime No. 133/2011 which is a missing complaint. It is further stated by PW-35 and corroborated by the evidence of PW-3, that on the next day morning, perhaps on 30.6.2011 PW-3 again went to the Police Station and suspected that his brother’s son Manjunath (A1) has taken the wife of PW-3 and the child which was seen by the witnesses Lavanya, Annapoorna and Gowramma. In fact, on the basis of such information, the Police Officer PW-35 went to the residential complex where PW-3 was residing and orally examined Lavanya, Annapoorna and Gowramma and got the said factum confirmed and thereafter on suspicion he secured the presence of A1 and his father. It is further specifically deposed that on the same day, on 30.6.2011 at about 8.00 p.m. accused No.1 and his father Sri.Govindegowda appeared before this witness and A1 has given his statement as per Ex.P-43 which is virtually the voluntary statement of the accused. As we have already referred that in this particular statement, the crime Number was recorded as 133/2011 and in that case, it appears the voluntary statement of the appellant was recorded and the accused has disclosed that he has committed the murder of the deceased and other various aspects. As the said confessional statement made by the accused on which basis no seperate case has not been registered, perhaps may be the reason, the police thought that on such basis no sepearte case be registered, therefore PW-35 in fact prepared a report as per Ex.P-50 and submitted the same to the Officer incharge of the Police Station on which basis a case has been already registered has been continued, incorporating the offence punishable under Section 302 in the same Crime No. 133/2011.
114. The learned counsel further submitted that, there is no specific mention as to how and in what manner the A1 was secured to the Police Station. Of course, PW-35 has not vividly stated what exactly he has done after PW-3 went to the Police Station and informed about the suspicion against A1, but the fact remains that A1 and his father came to the Police Station, the statement of A1 was recorded. How the police have secured the accused to the Police Station may not be so relevant, when Accused No.1 has not denied in the course of cross examination, the recording of the statement of the accused No.1 and also securing of the accused to the Police Station, infact these aspects were not at all touched in the course of cross examination of PW-35. Therefore, it goes without saying that on suspicion, the police have secured the presence of A1 and recorded his statement in Crime No. 133/2011.
115. The evidence of PW-38 also in our opinion play an important role. PW-38-Shanthamallappa deposed before the court that he took over the investigation on 30.6.2011 at 11.30 p.m., by that time a case was already registered against A1 at 10.30 p.m., He has gone through the voluntary statement of the accused as per Ex.P43 to 49 and he secured the presence of the panch witnesses and went to the house of A2 shown by A1, A2 was also arrested and his statement was recorded as per Ex.P-59 to P-67 and thereafter A1 and A2 also took the police to the house of A3, A3 was also arrested and his voluntary statement was also recorded by the police as per Ex.P68 to 73. In these statements, A2 and A3 have also categorically stated about the place where the dead body of the deceased was shown and if the police take them, they would show the place where the dead body was thrown.
116. Of course PW-38 has stated in his evidence that after he took over the investigation, he arrested A1. Now, the question arises what is the nature of the custody of the accused when PWs. 35 and 38 from the time when the accused suspected and produced or appeared before the Police Officer ie.,PW- 35.
117. Of course, no specific case was registered against A1 nevertheless, a case for investigation has already pending in Crime No.133/2011 and the police while investigating the said matter on the basis of the statement made by PW-3 suspecting A1, the presence of A1 was secured. During the course of investigation, the police have recorded the statement of A1 and while inquiring into the matter, PW-35 came to know that, the said Manjunath is the person who is responsible for the death of the deceased with the help of A2 and A3. Therefore, though a formal arrest was not there, nevertheless, a case which was registered, in Crime No.133/2011 was continued even after arrest of A1 to A3. Therefore, once the accused was secured and there was interrogation by the police, on suspicion and as well; while recording the statement it was confirmed to the police that he has involved in the crime, therefore, it can be safely said that A1 was in the surveillance of the police and during that period, the statement of A1 was recorded. Therefore, for all practical purposes in our opinion, the possession of accused No.1 by Police can be safely said that the accused was in custody of the police in connection with Crime No.133/2011. Though we are not putting our seal to the wrong procedure followed by the police, but in our opinion, it cannot be in a straight jacket manner said that, it would vitiate the entire further investigation and the recovery of the dead body and the incriminating articles at the instance of the accused Nos.1 to 3. In our opinion, it is only an irregularity and not an illegality committed by the Police Officer.
118. On perusal of the dictionary meaning of custody as defined in “Wharton’s Concise Law Dictionary’ which says – “Custody – The word is of elastic semantics but its core meaning is that the law has taken control of the person. Custody means only physical custody of a person in respect to a case. It can also be understood that custody means, the person who under the control of the court or under the control of the competent Police Officer. The above said definitions are in fact considered by the Hon'ble Apex Court in various decisions i.e., in Nianjan Singh V. Prabhakar Rajaram Kharote, reported in (1980) 2 SCC 559 and also in Nirmaljeet Kaur Vs. State of Madhya Pradesh reported in (2004) 7 SCC 558. Therefore, the custody has got its elastic semantics meaning, once it is established that it is only an irregularity and not an illegality committed by the Police Officer in taking the accused to his actual custody, but if it is shown that the accused was within the physical control of the Police Officer in connection with a case, that itself is sufficient to hold the custody of such person. However, this principle cannot be applied invariably in all the cases, but it all depends upon the facts and circumstances of each case. In our opinion, this is also one of such cases where such principle can be applied.
119. In fact the correct procedure ought had followed by PWs.35 and 38 are that, once they have secured the accused, on oral enquiry first they would have registered a case against him and recorded the voluntary statement and thereafter proceeded for further investigation. On the other hand, first they have recorded the voluntary statement and then registered a case for the offence punishable under Section 302 and proceeded for further investigation. This in fact the police have put the horse behind the cart. However, looking to the facts and circumstances and the time on which A1 was secured, statement was recorded, a case was registered and then arrested the accused, in our opinion, there is no deliberate intention or action on the part of the Investigating Officer. It is also worth to refer here the timings of recording the statement, in fact PW-35 has recorded the statement of A1 on 30.6.2011 from 8.00 p.m. It is a very lengthy statement recorded and it appears soon after recording the said statement immediately he prepared Ex.P-50 which is a report submitted by him for registration of the case u/s.302, 201 and 364 of IPC, and the said complaint was registered at 10.30 p.m. in the same crime number and thereafter he arrested the accused at 11.30 p.m. this clearly goes to show that Ex.P-43 to 49 and Exs.P.50, arrest of the accused are virtually simultaneous in nature. Therefore, the procedure followed by the Police Officer though not regular, but it is only an irregularity and not an illegality.
120. Even otherwise, if the statement of A1 is excluded, it goes without saying that a case was registered against A1 to A3 and then A1 has shown A2 and A3 and they were arrested and they also disclosed about the factum of throwing the dead body of the deceased at a particular place. Therefore to that extent, recording of the voluntary statement of A2 and A3 falls within the definition of Section 27 of the Indian Evidence Act and even if it is considered that on the basis of the voluntary statement of A1 and A3, all the accused persons have led the police and on the basis of which the police have recovered the dead body of the deceased. In such an eventuality also, irregularity committed by the police so far as recording of the statement of A1, is deemed to have been mitigated.
121. It is the further contention of the learned counsel for the appellant that once the statement of accused was recorded by the Investigating Officer, there was no necessity of recording of the statements of A2 and A3 with regard to the same facts. Therefore, there is no discovery of new fact from A2 and A3.
122. In this context, he relied upon a decision of the Hon'ble Apex Court between Sukvinder Singh & Others vs. State of Punjab reported in (1994) 5 SCC 152 wherein the Hon'ble Apex Court has observed that -
“Once the fact has been discovered, Sec.27 of the Indian Evidence Act, cannot again be made use of to ‘rediscover’ the discovered fact. It would be total misuse - even abuse -of provisions of Section 27 of Indian Evidence Act.”.
The above said principle has already been laid down in a decision reported in AIR 1971 SC 1871 between Thimma and The State of Mysuru.
123. In this context, as we have already stated, the following two decisions of the Hon'ble Apex Court play an important role:
(i) In a case between State (NCT of Delhi) Vs.
Navjoth Sandhu reported in AIR 2005 SC 3820, and (ii) In the case of Kishore Bhadke Vs. State of Maharashtra reported in (2017) 2 SCC (Crimes) 262, the Hon'ble Apex Court has laid down the principle at Head Note ‘B’ that -
“B. Evidence Act, 1872 – S. 27 – Joint/Simultaneous/Similar disclosures leading to discovery of same fact(s) – Admissibility of, and accused against whom admissible – Held, such disclosures, per se, are not admissible under Section 27, as there can always be more than one accused. – A joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in chorus – When two persons in custody are interrogated separately and simultaneously and both of them furnish similar information leading to discovery of fact which was reduced into writing, such disclosures by two or more persons in Police custody do not go out of the purview of Section 27 altogether – What is relevant is when information is given by one accused after other without any break, almost simultaneously (but separately), as in present case, and such information is followed up by pointing out of material things by both of accused then there is no good reason to eschew such evidence from regime of Section 27 and would be admissible against all such accused – Whether that information is credible is a matter of evaluation of evidence."
124. The Hon'ble Apex Court in the above said two decisions re-iterated that, if two or more persons are in custody and if they are interrogated separately, then simultaneously both the accused persons may furnish similar information leading to discovery of similar facts and no error arises if both the accused may reduce the information into writing and hand over the same to the Police Officer.
125. What the court has to see is that, whether the inormation given by them is consistent or not and if the Police on the basis of discovery of fact, have not yet recovered any article or any Material Object or tested the information. In this fashion, the court has to examine the factual aspects of this case.
126. The Investigating Officer PW-38 has in fact stated that, only after recording of the statement of all the three accused persons simultaneously on the same day, within short span of time and thereafter only all the accused persons took the police to the place where the dead body of the deceased was thrown and recovered the same. Therefore, particularly, so far as the factual matrix of this case, we find that the statement of the accused persons were recorded almost simultaneously without there being any delay and on the basis of the consistency of the statement of all the accused persons, the police found that all the accused persons have actually jointly threw the dead body of the deceased in a particular place.
127. Looking from another angle, when the police have recorded the voluntary statement of A1, when was stated by him that A2 and A3 were also involved and they are also residing nearby the houses to each other and on the same night, the statements of A2 and A3 were also recorded perhaps to get the confirmation of the truth or falsity of statement made by A1. Further, perhaps the Police have thought that, after recording of the statement of A2 and A3 to proceed further with reference to the recovery of the dead body. In this background, in our opinion, though there are some irregularities here and there as noted above, it will not totally amounts to illegality and totally eradicate the subsequent recovery of the dead body of the deceased or any ornaments at the instance of the accused Nos.1 to 3. Therefore, we are of the opinion that the recovery whether actually acceptable or not has to be decided by looking in to the further investigation done by the police. Therefore, we proceed to consider the recovery of the dead body and other incriminating articles in detail.
128. RECOVERY OF THE DEAD BODY AT THE INSTANCE OF A1 TO A3:
PW-38, the evidence of the Investigating Officer divulges that on 30.06.201 when he took over the investigation on 30.6.2011, by that time, accused No.1 was already in his custody. He secured the presence of the panch witness i.e., PW-8 Chandrashekar and PW-9 Mohammed Hanif. It is further deposed that A1 led the Police and the panchwitnesses to Beemanakatte village and in fact tapped the door of a house and a person by name Adithya opened the door and he was taken to the custody and in fact he is A2 in the case, and the Police have recorded the voluntary statement of A2 and he gave his statement as per Exhibits P-59 to 67 and also the said accused No.2 showed a motor cycle and also produced a sony ericson mobile which was used for the commission of the offence. The Investigating Officer has seized the said articles under Mahazar Ex.P-7 and motorcycle was also identified as MO-21.
129. It is the further case of the Investigating Officer that, accused Nos.1 & 2 again took the Police and the panch witnesses to another accused’s house, which is near by the house of A2 and tapped the door of the said house and showed one Mr. Chandru who is A3 in this case. The Police have also taken the custody of the said accused and at that time, the accused No.3 has produced voluntarily a mobile set and the Police have seized the said items under Mahazar Ex.P-8 and the said mobile was also marked at MO-22. Thereafter, the voluntary statement of A3 was recorded and both A2 and A3, as noted above have also re-iterated that, if the accused persons were taken with them, they would show the place where the dead body was thrown. Therefore, prior to going to recover the dead body, the above said items were shown by A2 and A3 voluntarily and the same were also recovered by the Police. We will discuss this particular portion of the recovery little later with reference to other materials on record.
130. The Investigating Officer with reference to the recovery of the dead body has categorically stated that the Accused Nos.1 to 3 took the Police and the panch witnesses on the Madikeri-Bagamangala Road. After travelling about 20 kilometers, they asked the vehicle to be stopped. Accordingly after stopping of the vehicle, A1 to A3 took the Police and the panch witnesses to the extreme side of the road and they went down to a valley like place and showed the dead body of a lady, which was about 10 feet to the down gradient from the road which was tagged to the bottom of a tree. PW-38 (I.O) has stated that, the said dead body was not visible from the place where they were standing on the road. Thereafter, he sent words to PW-3 Ragu and PW-4 Yogesh who also came to the spot at about 10.00 a.m., It is further deposed by PW-38 that on examination of the dead body in the presence of panch witnesses and also a inquest panch -CW.8- K.B.Poonachha, they conducted the inquest proceedings on the dead body as per Ex.P-9, they observed that there was a belt tied to the neck of the deceased and after loosening the said belt tied to the neck, they have taken the measurement of ligature. Thereafter, they also found one wrist watch and ankle chain and a shoe of the left leg, one pair of ear studs and also a copper wire and two gold beads and Gold Thali which were on the dead body. They were all removed and handed over to PW-3 and thereafter the dead body was sent to the post-mortem examination.
131. The evidence of the Investigating Officer is fully corroborated by the evidence of PW-8. PW-8 Chandrashekar has categorically stated the above said aspect and he has deposed before the court as to how he was secured to the Police Station. He has stated that on that particular day, he had been to the Police Station in the night hours at about 11.00 p.m., to drop his friend he had been to the bus stand thereafter he was proceeding back to his house on his two wheeler, while possessing in front of Devaraj Police Station, the police stopped him and requested him to act as a panch witness and in fact, they also secured one more panch witness by name Pasha CW-6. The witness also stated that the accused No.1 was there in the Police Station and he took the police to a village by name Allur and he tapped the door of a house and found A2- Adithya and he produced the pulsar motor cycle and a mobile which were recovered under mahazar Ex.P7. He identified his signature as Ex.P7(a). It is also stated that A1 and A2 further took them to the house of A3 and A3 was also taken to the custody and he produced a mobile and the same was seized under panchanama Ex.P-8 and this witness has identified the signature on Exs.P8 & P9. It is further stated by this witness that all the accused persons jointly took the police and the witnesses on Madikeri Bagamangala road and at a distance of 20 kilometers after stopping the vehicle, all the three accused went ahead and showed the dead body which was in the down gradient from the road and the police have recovered the dead body. This witness has further categorically stated that the neck of the dead body was tied with belt and there was wrist watch and other articles as stated by PW-38 and in fact after conducting the inquest, the dead body was sent for Post Mortem examination.
132. Therefore, from the above said evidence sofar as recovery of the dead body is concerned, it was shown, that the said fact was in the exclusive knowledge of A1 to A3, they jointly went ahead and showed the dead body to the police and the same was recovered. No worth cross-examination has been adverted to disbelieve the evidence of this witness PW-
8. It is elicited in the course of cross-examination that some local village people were also present at that particular point of time, and that those people did not accompany the police to the Police Station. It is further suggested to him that when these witnesses and the police went to that particular place, lot of people were already gathered there and the police have actually scattered them, but the said suggestion has been denied. On the other hand he has specifically and categorically stated that, after these witnesses went there and on seeing the police, lot of people gathered there i.e., about 25 to 30 people gathered and thereafter, PW-3 also came to the spot. Except these suggestions, nothing has been elicited in the course of cross-examination as to why this witness has to say lie against the accused or falsely implicate A1 to A3 with reference to all the Accused specifically showing the dead body of the deceased. Further added to that there is no suggestion to this witness that he is a regular witness to the police or is a stock witness to the police, or is an interested or inimical witness to accused, therefore, he was specifically selected for the purpose of these panchanamas. More over so far as recovery of the motor cycle and two mobiles at the instance of the accused Nos.2 & 3 are concerned, as stated by PW-38 and this witness was not even touched during the course of cross-examination. Therefore, there is absolutely no material elicited in the course of cross- examination to disbelieve this witness so far as this aspect is concerned.
133. Coming to the cross-examination of the Investigating Officer, at paragraph 56 of his evidence, some factual aspects have been questioned. It is answered by PW-38 that, on that particular day, they left to Beemanakatte, Allur village on 1.7.2011 at about 6.00 a.m., and while leaving the said village with A-1 to A-3 he has informed PW-3 and the photographer Sri.Yogesh to go over to Bagamangala road and he also admitted that the police were already knew that the dead body was there in the said road. The witness has admitted the same may be for the reason that accused persons 1 to 3 have given their statement with reference to the place where the dead body was thrown. Therefore, the said answer in our opinion does not give an indication that the particular place where the dead body was actually thrown was well within the knowledge of the police. This also further clarified in the next sentence of the evidence while answering to a suggestion that the place where the dead body was lying was already known to the police and the said suggestion was denied by the Investigating Officer. It is also re-iterated in the course of cross-examination that, the dead body was not visible from the road and the dead body was tagging to the bottom portion of a tree. It is further stated that, the dead body was lifted from that place and brought to the road side for the purpose of conducting the inquest proceedings, but he re- iterated that after conducting the inquest, they brought the dead body on to the road. It is also suggested that when the belt tied to the neck and when the police were removing the belt, at that time, the Thali in the Mangalya chain was broken and it was fell on the dead body of the deceased, but the said suggestion has been denied. Therefore, except this particular portion, nothing has been elicited to discard the evidence of the Investigating Officer to the effect that they did not come along with the accused at all and the accused did not show the dead body of the deceased. Therefore, in our opinion, the prosecution has successfully established the recovery of the dead body at the instance of the accused Nos.1 to 3 which was in their exclusive knowledge. The Accused have not given any explanation except denying the case of the prosecution so far as this strong proved circumstance is concerned.
134. Now, the next aspect is with regard to recovery of the other incriminating articles and the connection of the articles with that of the crime.
135. RECOVERY OF ONE GOLD CHAIN, TWO BANGLES AND ONE MANGALYA FROM A1:
PW-38 again the Investigating Officer has deposed that after recovery of the dead body, the accused No.1 has also took the Police and the panchas to his house at Malangi gomal and the Police, followed Accused No.1 and he took the Police to his house and went inside the house from below the bed in a room, he showed the place where two rows of gold chai, bangles and one Nokia express mobile were kept and he produced the same before the Police on the same day, on which day the dead body was recovered.
136. The police have conducted a Mahazar as per Ex.P-10 and recovered those items i.e., bangles as MO-2 and two lined gold chain as MO.3 and Nokia mobile as MO-23. After these articles were recovered, the police have questioned A-1 and thereafter he further stated that there were four gold bangles on the deceased and two line gold chain, out of them, he has taken two bangles, one chain and he has given one gold bangle each to A2 and A3 and the Police have recorded their further statement. Thereafter, further statement of A1 was also recorded as per Exs.P-74 and P-75.
137. Be that as it may, before referring to the recovery of a Vanity Bag and bangles from A2 and A3, let us examine, whether this particular portion of recovery of a gold chain, two bangles and one mobile at the instance of the accused No.1, is supported by the panch witnesses or not?
138. PW-9 Mohd. Hanif is one of the panch witnesses who supported the said portion of the evidence of the Investigating Officer. He has deposed before the court that, on that particular day at about 4.30 p.m., he was proceeding from his village i.e., Allur village to go to Piriyapatna, when he reached Malangi Gomal, the Police have requested this man to stop for a while, and he saw the Police and some witnesses near the house of one Govindegowda i.e., the house of father of A1. The Police have requested this man to act as a panch witness, at that time all the accused-1 to 3 were there with the Police. A1 took the Police and the witnesses to his house and underneath the bed on a cot he removed one gold chain having two lines and two bangles and one nokia mobile and the Police have recovered them under Mahazar Ex.P-10 and this witness has identified his signature on Ex.P10 as Ex.P10(a). He also identified the gold bangles as MO-2, gold chain as MO-3 and mobile as MO-23.
139. During cross examination of this witnesses, in our opinion, nothing worth has been elicited except putting some formal suggestions. It is re-iterated by this witness that, he has already seen the house of A1; A1 and his father were known to him because A1, his father and mother and another brother were all residing in the said house since long. At the time when the accused showed the above said articles all the other members of the house were there in the house and panchanama was written in the front yard portion of the house of A1, this witness was there at the spot for about 20 minutes. It is suggested that he did not go inside the house nor seen anything, but he signed the Mahazar in the Police Station, but he denied the said suggestion. Except these things, nothing worth has been elicited in order to discard the evidence of these witnesses. It is also not elicited that he is a stock witness or he has got any animosity or hatredness or ill- will against accused No.1. Therefore, the evidence of this witness fully corroborated the evidence of PW-38, the evidence of the Investigating Officer.
140. Even during the course of cross examination of PW-38, so far as this aspect is concerned, at paragraph 56, it was suggested that, the recovery of these articles should have been done at the instance of the accused No.1 when he was taken to the custody on 30.6.11 itself, there was no necessity for PW.38 to record the voluntary statement by way of instalment. Though this witness has stated that he could have done that, but he has stated that he felt that, recovery of the dead body at the instance of the accused was the prime aspect to be done prior to recovery of other recoveries. It is also suggested that, even prior to arrest of A2 and A3, the dead body was in fact recovered at the instance of the accused No.1, but the witness has stated that the arrest of A2 and A3 was simultaneous and one after another, as the accused No.1 sequence-wise taken the Police to the houses of A2 and A3. Therefore, soon after the arrest of A2 and A3, the Investigating Officer proceeded to recover the dead body first and concentrated on recovery of other articles later. We do not find any strong reasons to discard the evidence of the Investigating Officer only because of this reason. It all depends upon the understanding of the case by the Investigating Officer and he is the master of the investigation who has to take appropriate measures at right times. Merely because he did not go to the place of incident after the arrest of A1, for recovery of the dead body even before arresting A2 and A3, we cannot find fault with the Investigating Officer. As we have already made an observation that after arrest of A1 in his voluntary statement, he has involved A2 and A3, telling that they were also responsible for throwing of the dead body at a particular place. Therefore, the Investigating Officer must have felt that, the arrest of A2 and A3 may also confirm with regard to the place of the dead body and also felt that after arresting A2 and A3, the dead body could be recovered. Such imagination or thought by the Investigating Officer, in our opinion, cannot be said illogical or any way damage the case of the prosecution. Therefore, we do not find any strong reason to discard the evidence of these two witnesses with reference to recovery of one gold chain and two bangles at the instance of the accused No.1.
141. Now, coming to the recovery of the other articles i.e., one bangle each from A2 and A3, the prosecution has relied upon the evidence of the Investigating Officer and panch witness PW-10.
142. Again PW-38 (I.O) in his evidence has stated on the basis of the further voluntary statement of A1 as per Ex.P.74 to P.75 that he gave one bangle each to A2 and A3, it appears, the Investigating Officer further recorded the voluntary statement of Accused Nos.2 & 3, wherein A2 has stated as per Ex.P.76 that A1 gave one bangle to him and gave another bangle to A3 and he told the Police that he kept the same in his house and if the police accompany him, he would produce the same. In similar fashion A3 also gave his voluntary statement as per Ex.P-77.
143. The learned counsel further contended that when A2 and A3 were arrested at the initial stages, if at all they have been taken those two bangles, they would have stated the same before Police. The Investigating Officer PW-38 has not recorded the complete voluntary statement of accused Nos.1 to 3 at once with regard to the above said items. Therefore, it looks very artificial and in order to implicate the accused persons, the above said aspects have been surfaced later at the instance of PW.3. The above said arguments appears to be sound, but in our opinion, if A1 has stated subsequently that he has given two bangles, one each to A2 and A3, perhaps, then only that prompted the Investigating Officer to record the further statement of A2 and A3. When it is stated that it is only the voluntary statement of the accused, the Police cannot forcefully elicit anything from the mouth of them. Therefore, it depends upon the facts and circumstances of each case. When it is said that the statement of the accused is voluntary, whatever they say , the Police have to record the same. They cannot make any force or any coercion to elicit anything. In the facts and circumstances of this case, the accused No.1 perhaps after recovery of some articles from him, disclose the giving of other two bangles to A2 and A3 and A2 and A3 did not disclose the same at the first instance may be for the reason that, if it would not come to the light, then they can keep those bangles with them, as it was given to them as a bounty by A1. These inferences can also be drawn logically because of the surrounding circumstances existing in this case. Therefore, we find no strong reason to find fault with the Investigating Officer in recording the voluntary statement of A1 to A3 on two occasions because it depended upon the subsequent events and circumstances existed in the case.
144. On the basis of the above said statement of A2 and A3, the Police proceeded further for recovery of those articles from A2 and A3. It is deposed by PW-
38 that, Accused Nos.1 to 3 again took the Police and the panch witness i.e., PW-10 to the house of A2 at Allur village and A2 took the Police to his house and produced a bangle which was kept just behind a photo and the Police have recovered the same and thereafter A3-Chandra took the witnesses and panch to his house situated at a distance of about 200 meters from the house of A2. A3 took the Police to the hind portion of the said house and took out a gold bangle which was kept on a wall just below the roof rafter which was inside a plastic cover and produced the same. So far as these two aspects are concerned, the Police have drawn a common Mahazar Ex.P-11 and recovered the said bangles which are jointly marked as MO-1.
145. PW-10 Shivananda has deposed before the court that, himself and CW-18 Chandragouda were consuming coffee in Deviprasad Hotel, Hunsur, at that time, the Police secured the presence of this witness and showed A2 and A3 and thereafter requested these witnesses to act as panch witnesses. At that time, on request this witness went with the police in a Tavera vehicle, wherein that vehicle A2 and A3 were also present. He exactly reiterated about the act of accused persons 2 & 3 with reference to showing of their houses respectively and producing one gold bangle each as narrated by PW-38. There is no deviation from the facts narrated by PW-38. This witness has identified his signature in the Mahazar as per Ex.P4(b).
146. A very short cross examination was adverted to this witness, it was suggested regarding securing of the presence of this witness. It is suggested that he never seen A2 and A3 at any point of time. But he denied the said suggestion and he has stated that, he has seen A2 and A3 at the time of recovery of bangles. It is also suggested that, the Police were also not known to him earlier prior to the said recovery circumstance, the Further suggestion to this witness was that, this witness does not accompany the Accused Nos.2 & 3, those suggestions been denied and again nothing worth has been elicited from this witness. Further, nothing has been suggested to this witness or to the Investigating Officer that he is a stock witness to the Police or he has got any interest enimity in deposing against the accused persons.
147. In this background coming back to the evidence of PW-38 so far as recovery is concerned, at paragraph 55, except eliciting some discrepancies with reference to the voluntary statement of the accused persons to the effect that A2 and A3 have stated that all the bounty and the gold articles were taken away by A1, nothing worth has been elicited. This also clearly discloses that voluntary statement of accused persons were recorded by the police and in accordance with the said statement, recoveries have been made. Though there is some discrepancy elicited with regard to the dates of recording of the voluntary statement of the accused, nevertheless, the said giving of the voluntary statement as such has not been destroyed. It is further suggested to this witness that A2 and A3 did not give any voluntary statement but the said suggestion has been denied by this witness. Therefore, looking to the above said facts and circumstances, in our opinion, so far as recovery of the above said incriminating articles are concerned, it had been successfully established by the prosecution.
148. Apart from the above, the Investigating Officer has also stated that A1 to A3 had taken the police to the spot where they have committed the murder of the deceased and also the place where they left the child while coming back after committing the murder of the deceased, in our opinion, those aspects are not so relevant to be discussed.
149. Another important recovery is recovery of a the vanity bag and a Indica Car. The prosecution has relied upon the evidence of PW-38 and PW-12 so far as these aspects are concerned. PW-38, the Investigating Officer has also deposed that at paragraph 21 of his evidence that while the accused persons shown the place of the incident and they also took the police near a banyam tree situated at about 2 kilometers on Nagawala Ilwala road and showed the place of the incident and the police drew up mahazar as per Ex.P-14 in the presence of PW-12 Lokesh and CW-13 Prabhu. Again A1 to A3 took the police and the witness to a distance of 50 meters from that place and showed the place where a vanity bag of the deceased was thrown and it was a bush and in fact a localite by name chikkanna was secured and with the help of him the said bush was cut and removed and the police found the vanity bag there and the said vanity bag was also recovered under a mahazar Ex.P-15, PW-38 has identified his signature as Ex.P-15(b). On examination of the said vanity bag, the Investigating Officer has found that there were several items ie., a identity card issued by the election commission and a ATM card pertaining to SBM and out patient chit, Jems Pack of Polo Company, one key, one paper cover, one curchief and one Eclairs chocolate. These items were also seized and the Investigating Officer and the same are marked at MOs. 5 to 15. Virtually no cross-examination has been adverted to so far as this recovery is concerned. PW-3 in fact has identified this vanity bag as it belonged to his wife, the deceased. Of course, in the course of cross-examination at paragraph 59, it is suggested that when the deceased left the house on that particular day, there is no material to show that she has taken this vanity bag and it is also suggested that, no witness has deposed that, the deceased has taken this vanity bag and also wearing the gold chain and four bangles on that particular day. Except this elucidation of fact, nothing worth has been elicited from the mouth if this witness.
150. PW-12 in this regard has also fully supported the evidence of the Investigating Officer. Mr.Lokesh has deposed that on that particular day, he was consuming juice near a juice shop situated near Devaraja Police Station, Mysuru. He was secured by the police and all the accused persons were there in the custody of the police and he stated that A1 to A3 took the police to Nagwala road and showed the place where they have committed the murder of the deceased and also showed the place where the vanity bag was thrown and in fact the said vanity bag was inside a bush and a localite was secured for the purpose of cutting and removing the bush and thereafter, the police have recovered the said vanity bag and found MOs.5 to 15 in the said bag. He also identified the said articles before the court. Very peculiarly, it is suggested that these witnesses and police went there, there was no bush at all, in fact it is also questioned as to who cut and removed the bush. This suggestion goes to show that these witnesses and police had been to that particular place and there is no reason as to why this witness has to be disbelieved. This witness has not been even suggested that he is a stock witness to the police or he is regularly attending the Police Station to help the police or interested or enimical to any of the Accused. In the absence of such materials, in our opinion, the above said recoveries have been beyond all reasonable doubt established by the prosecution.
151. NOW, THE NEXT CIRCUMSTANCE IS, CONNECTION OF SEIZED ARTICLES TO THE CRIME:
Of course, it is suggested by PW-38 that no witnesses have stated that, the deceased when left the house was wearing the said articles and as well as carrying the vanity bag with her. Nevertheless, it is seen from the records as well as the voluntary statement of the accused and the detailed discussion of the cross-examination of the Investigating Officer and other witnesses as done supra, it is not the case of the accused that these articles actually belonged to them.
At no point of time, they claimed that, these gold articles belonged to them. Once it is established before the court that these items were recovered at the instance of the accused Nos.1 to 3, it becomes their responsibility to explain how they came in possession of these articles or whether those articles belonged to them or whom. Though this aspect is not sufficient to draw the inference that the accused are the culprits, but this also run as an additional link of circumstance against the accused.
152. In the above said backdrop, the evidence of PW-3 if it is read, though he has not stated in his earlier statement that a missing complaint with regard to the missing of these items and also not stated that, his wife was wearing those articles. Nevertheless after the seizure and recovery of these articles, he identified those articles are that of his wife. In the evidence, he has specifically stated at paragraph 34 that his wife was always wearing two lined Mangalya chain and the said two lined gold chain were fitted with two gold beads with black beads with the Mangalya (Thali) and this used to be worn by the deceased always with her. It is suggested that, these items were not worn by his wife and he produced these items at the time of inquest proceedings for the purpose of making use of these articles by the Investigating Officer to show that these articles were recovered at the instance of the accused persons. Except this suggestion, nothing has been elicited as to why this man has to falsely identify those articles as belonged to his wife.
153. Though he has not stated in his earlier statement or in the missing complaint about missing of these ornaments but, he has categorically stated in his evidence before the court that on examination in the house, he came to know that regularly his wife was wearing the two lined gold chain and four bangles and also carrying vanity bag wherever she goes. It is also a normal tendency of ladies to carry at least one vanity bag along with them. Also it is not un-common that they wear gold bangles and also the mangalya chain with one or two lined gold chain. When it is not uncommon and in the absence of any explanation by the accused persons with regard to those items belonged to whom and how they came into their possession and further they have not objected for release of these articles in favour of PW-3. All these circumstances in our opinion, clearly establishes that these articles belonged to the deceased. It is one of the strongest circumstance run against the accused person that they are the persons who have committed the murder of the deceased and taken over these articles from her. Further, the use of the car as stated by PW.4, PW6 and PW.14 and recovered at the instance of the accused persons and as well as the recovery of the above said items in our opinion, strongly and un- erringly indicate that the accused must be the persons who have committed the murder of the deceased and taken over these articles which were on her body.
154. RECOVERED ITEMS WERE NOT SEALED AND PACKED:
The learned counsel for the appellant has also contended that the recovered articles have not shown to have been sealed and packed by the Police Officer during the course of investigation. As could be seen from the above said recovery, the recovery are all pertaining to some gold ornaments and not particularly any blood stained articles as such.
155. The learned counsel for the appellant has in fact has relied upon a ruling in this context reported in ILR 2016 KAR 4896 between Mrs. Sharada Urs and Bharthi Urs Rani and Others, wherein this Court has observed at paragraph 19 that Section 102(3) of Cr.P.C. mandates that – “If any search and seizure have been made and the Investigation Officer suspect that the said property is either stolen or which was found under doubtful suspicious circumstances, he shall forthwith report the seizure to the concerned officer and he shall also forthwith report the seizure to the Magistrate having jurisdiction where the property was recovered or seized.”
156. In this context, learned counsel for the appellants submitted that the seized articles are not actually send to the Magistrate immediately after its seizure. Of course, we also found that there is some delay in sending the seized articles to the Magistrate. Even in a decision reported in (2003) 9 SCC 86 in the case of Babudas and State of Madhya Pradesh, the Hon'ble Apex Court has observed that – “The properties which are seized in a criminal case have to be sealed and packed with signatures of the witnesses and the same has to be informed to the Magistrate. Otherwise, suspicion will be created in the genuineness of the recovery.”
157. Of course, there is no sealing and packing of the articles and it is not stated by the Investigating Officer or any of the witnesses. The documents clearly discloses that on 5.7.2011, the Mahazar was drawn and articles are seized and the same were submitted to the Magistrate on 12.7.2011. But, it is to be noted that what actually the prejudice that has been caused to the accused is nowhere stated, merely because there is delay, if the other materials are strong enough to show that the articles were actually recovered at the instance of the accused, due value should be given to the evidence of the panch itnesses who have un- stinctedly deposed before the court with regard to the recovery and seizure of the articles by the Investigating Officer. If there is any lapse on the part of the Investigating Officer that should not in any manner affect the seizure and recovery of the articles. Therefore, the accused has to show before the court what was the prejudice that has been occurred to him in sending the articles to the Magistrate with a little delay. The lapse on the part of the Investigating Officer though apparent, but in our opinion, depending upon the facts and circumstances of the case, that lapse should be taken into consideration by the courts.
158. In this context, it is worth to note here a decision of the Hon'ble Apex Court reported in AIR 2001 SC 3678 in the case of Sukhdev Yadav and others and State of Bihar, wherein the Hon'ble Apex Court at Head Note C has observed that – “Appreciation of Evidence – Alleged on part of prosecution as to non-production of the seizure list in court as a part of the records – However, evidence of eye- witnesses on record was found to be trustworthy. Therefore, lapses on part of prosecution held, stand over-shadowed by testimony of eye-witnesses – No prejudice caused to accused – Trial not vitiated.”
159. The above said aspect has been considered by the Hon'ble Apex Court relying upon its earlier decision reported in AIR 1997 SC 3471 between Baleshwar Mandal and State of Bihar. Therefore, unless it is shown to the court, there was a prejudice occurred to the accused in not sending the articles to the Magistrate and seizure and packing of the said articles, the court cannot simply ignore the other strong evidence available on record. Therefore, we do not find any strong reasons to discard the evidence of the prosecution witnesses with regard to the recoveries are concerned, as discussed above.
160. THE NEXT STRONG CIRCUMSTANCE IS WITH REGARD TO THE CALL DETAILS.
The prosecution has relied upon the evidence of PW-36 Investigating Officer who collected the call details of A1 pertaining to his mobile with regard to the date of incident and time. It is also submitted that, the tower location and the name of the places are depicted in Ex.P-90 and it was A1 from whom the mobile MO-23 has been recovered. It is also contended that the call details marked at Ex.P-90 has not been denied and the contents are also not questioned in the course of cross examination of PW-36 who produced the said documents. Ex.P-90 clearly discloses that, on the relevant date and time the accused No.1 visited the place Kalamandira, complex from where A1 has taken the deceased and the child. In this regard, the prosecution has relied upon the evidence of PW-3 and PW-36.
161. The learned counsel for the appellant has strenuously contended that, the said call details are not supported by any certificate issued by the competent authority u/S.65-B of Indian Evidence Act and further the author of the said document who issued the said document has not been examined before the court. Therefore, such evidence cannot be relied upon by the court. In this context, the evidence of PW-3 and PW-36 has to be looked into and thereafter, the court has to consider whether Sec. 65-B of the Indian Evidence Act is an absolute requirement so far as this case is concerned.
162. PW.3-M.D. Raghu has in fact categorically stated that, A1 was having a telephone bearing its No.9481818089 and after coming to know that the accused No.1 taken the child and the wife of PW-3, he telephoned A1 on that number, on 28.06.2011, but he could not able to get the connection as the same was switched of. Thereafter, he made attempts to contact the father of A1 through his telephone No. 9740502675 but he could not able to get the connection. Aafterwards, he came to know that A1 had been to his maternal uncle by name Nagaraja at Kollur he also collected the phone number of the said Nagaraja i.e., 9449118675, and he also tried to contact him, but he could not able to contact him also. Subsequently, on 30.6.2011, he was able to contact the said Nagaraj and asked him whether A1 had been to his house and inturn said Nagaraj told that on 29.6.11 evening the accused had come to his house and therefore, the said Nagaraj had given the said phone to A1 and PW.3 contacted A1 in this regard. This particular aspect has not been controverted during the course of cross examination of this witness. There is no denial even the accused had not having any such mobile with him. So far as these particular aspects are concerned as stated in the examination in chief, there is absolutely no cross examination and it is not even touched and denied that the accused was not having such mobile number with him. As we have already narrated the seizure of the mobile at the instance of the accused No.1, which is already established by the prosecution.
163. In this connection, the evidence of PW-36 C.T. Jayakumar is also required to be perused. He has stated at paragraph 6 of his evidence that on 5.7.2011, the Investigating Officer has requested for furnishing of the call details report of the cell phone No.9481818089 and 9845913791 and accordingly, he has collected the call details report from the service provider and produced the same as per Ex.P-90 pertaining to the mobile No.9481818089 and on perusal of this Ex.P-90, it discloses that during the relevant point of time, this mobile was operating near the house of the deceased. In the course of cross examination, so far as this particular aspect is concerned, i.e., with respect to the mobile No.9481818089 and also collecting all the call details by PW-36 and furnishing the same to the Investigating Officer as per Ex.P-90 is not at all disputed during the course of cross examination.
164. In this context, it is worth to refer a decision of the Hon'ble Apex Court reported in (2017) 8 SCC 570 between Sonu @ Amar and State of Haryana wherein the Hon'ble Apex Court has observed with reference to admissibility of electronic records that, -
“Evidence Act -Sec.65-B(4)- Admissibility of Electronic Records - Objections regarding mode/ method of proof of call detail records (CDRs.) of mobile phones recovered from the accused raised for the first time before the Supreme Court if permissible.”
The Hon'ble Apex Court has also further observed that,-
“Mode or method of proof is procedural and objections, if not taken at trial cannot be permitted at the appellate stage. If objections to mode of proof are permitted to be taken at the appellate stage by a party, the other side does have an opportunity of rectifying deficiencies, objection that CDRs are unreliable due to violation of procedure prescribed in Sec.65-B(4) of the Indian Evidence Act cannot be permitted to be raised at the appellate stage, as the petition relates to mode or method of proof has to be taken before the trial Court itself.”
Therefore, the arguments of the learned counsel for the appellant that Section 65B of the Indian Evidence Act. is not complied and no such certificate obtained by PW-38 or furnished by PW-36 is not tenable. Though this is a piece of evidence placed before the court to show about the movements of A1 near the house of the deceased, in our opinion that itself is not sufficient to draw any inference against the guilt of the accused. This is one linking circumstance which only corroborates the movement of the accused No.1 nearby Kalamandira, Mysuru, where the house of PW-3 is situated nearby the said building. Therefore, this circumstance alone cannot be relied upon by the court to draw any inference against the accused. It can only be used to show that the mobile was operating near that particular place, except that no other inference can be drawn. Even otherwise than this evidence, PW.1 and PW.2 hence amply deposed regarding the presence of A.1 at that relevant time, as discussed earlier.
165. REGARDING IDENTIFICATION OF ACCUSED:
Much has been argued with regard to the identification parade of the accused persons. The learned counsel for the appellants strenuously contended that A2 and A3 particularly, were not known to any of the witnesses. Therefore, in the absence of any identification parade, their identification before the court is valueless and further, the photographs of the accused were shown to the witnesses in the Police Station. Therefore, in such an eventuality also, the IT parade ought to have been done by the Investigating Officer.
166. In this context, the learned counsel for the appellant has relied upon various rulings. We would like to rely upon one of the rulings of the Hon'ble Apex Court reported in (1998) 4 SCC 494 between Md. Iqbal M and State of Maharashtra, wherein the Hon'ble Apex Court at paragraphs 13 and 15 observed that, – “ If the witness knew the accused persons either by name or by face, question of Police showing him the accused persons becomes irrelevant. If the witness did not know the accused persons by name, but can only identify from their appearance then a Test Identification Parade was necessary, so that the substantive evidence in court about the identification, which is held after fairly a long period, could get corroboration from the identification parade. – Again if the Police shows the accused persons in the Police lock-up to the identifying witness then the so-called identification loses its value, inasmuch as, it is only because of the Police showing the persons, the witness is being able to identify the alleged accused. If the accused has been shown to him in the course of investigation then the so-called identification in court is of no consequence and cannot form the basis of conviction.”
167. Per contra, learned SPP has also relied upon a ruling of the Hon'ble Apex Court reported in 2015 (1) Crimes 77 between Motilal Yadav and State of Bihar, wherein the Hon'ble Apex Court has observed that u/s.9 of the Evidence Act, that non holding of Test Identification Parade not fatal if naturally witnesses, identify the accused without any doubt. In this context, the Hon'ble Apex Court has also referred to its earlier decisions reported in (1) (2012) 9 SCC 284 between Ravi Kumar and State of Rajasthan;
(2) (2013) 14 SCC 266 between R Shetty and State of Kerala; and (3) (2012) 4 SCC 747 between Ashok Debarama @ Achak Vs. State of Tripura.
168. Relying upon those rulings, we are of the opinion that the Test Identification Parade before the court itself is a good identification in the eye of law. It is not always necessary that it must be preceded by the Test Identification Parade, it will always depend upon the facts and circumstances of the given case. In one case, it may not even necessary to hold any Test Identification Parade while in the other, it may be essential to do the same. Thus, no straight jacket formula can be stated in this regard. The actual evidence regarding identification is that, which is given by the witnesses in the court. A Test Identification Parade cannot be claimed by an accused as a matter of right. Mere identification of an accused in a Test Identification Parade is the only circumstance, which corroborate the identification of the accused in the court. Primary object of Test Identification Parade is only to enable the witness/s to identify the persons involved in the commission of the offence, if the offenders are not personally known to the witnesses, otherwise no question of conducting any Test Identification Parade. Therefore, it is clear that it all depends upon the facts and circumstances of each case. If the evidence before the court with regard to the identity of the accused is reliable and trust worthy for acceptance, then even in the absence of any Test Identification Parade, it will not invalidate the identification of the accused before the court by the witnesses. In this background, the court has to examine the evidence on record with regard to the identification of A1 to A3. To some extent, we have already discussed this aspect with reference to the circumstances of last seen of the accused Nos.1 to 3 with the deceased and the child.
169. Now, we will only concentrate with regard to the relevant portion of the evidence of those witnesses as to how they could able to identify the accused persons unerringly before the court.
170. As we have said that to some extent, we have discussed about the identification of A1 to A3 by the witnesses. There is no much dispute so far as identification of A1 is concerned. PW-1 has categorically stated that he saw A1 taking the deceased and the child along with him on the date of the incident in the morning hours. He has also deposed that, he has earlier seen A1 as PW-3 has introduced A1 as his brother’s son. He has also deposed that on 29.6.2011, when he was standing near the portico of his house, he saw A1 taking the deceased i.e., the wife of PW-3 and the child. So far as this particular aspect is concerned, is not denied in the course of cross examination and also with regard to the fact that this witness earlier knowing A1. The whole cross examination was concentrated with regard to the date of the incident. He has also in fact identified that the wife of PW-3 was wearing red colour saree on that particular day and the child was wearing a small nicker and a green colour shirt.
171. PW-2 Kum. Lavanya has also categorically stated that, she had seen A2 and A3, two or three times earlier to the incident in the house of PW-3. Deceased Latha has in fact introduced A1 to her on the previous occasions. She has categorically identified A.1 before the court and stated that he has actually taken the deceased and the child along with him. As we have discussed earlier again this particular aspect of A1 being seen by this witness earlier has not been controverted in the cross-examination except a casual denial. Therefore, so far as A1 is concerned, there is no much dispute with regard to the identification, as these two witnesses have candidly identified A1 before the court.
172. Though much argument has been addressed by the learned counsel for the appellant appearing for A2 and A3, arguing that, the accused Nos.2 and 3 are total strangers to the witnesses, particularly PWs. 4, 6, 7, 13 and 14 are the persons who have not actually seen the accused Nos.2 & 3 in detail and no identification marks have been given by them so as to particularly identify the accused persons before the court. In this background, we have to examine the evidence of these witnesses.
173. Of course, the evidence of PW-4 is not so appreciable with regard to the identification of the accused Nos.1 to 3. PW-4 Yogesh, who was working as a Cashier in a Petrol Bunk on Mysuru – Madikeri road, which is called as GSR Highway Petrol Bunk, has deposed that, on the date of the incident, he was standing in front of the petrol bunk and at that time, a Maruthi 800 Car was moving in front of the Petrol Bunk and the said car was slowed down. At that time, a Tata Indica Car which was moving just behind Maruthi 800 Car dashed against the said car, which gave raise to a quarrel between the drivers of the said cars. In fact, this witness went there and resolved the dispute for a sum of Rs.3,000/- to be payable by the Indica Car driver to Maruthi 800 Car driver. Accordingly, the Indica car driver i.e., A1 paid an amount of Rs.3,000/- to the Maruthi Car driver. He has specifically stated that he cannot say how many persons were there inside the said Indica Car, but he has specifically stated that A1 was the person driving the said car on that particular day and he has also stated that A2 and A3 were also present in the said car. He gave an explanation in the examination in chief itself that the Indica Car driver was actually falling on the foot of the driver of the Maruthi 800 Car to excuse him and this witness went there and actually resolved the dispute. Therefore, in that context, the said incident was very green in his mind and as such, he could able to identify A1 and A2 at that particular point of time. Though police have shown A1 to A3 to this witness, but in the course of cross- examination, he has identified A1 and A2 only. So far as identification is concerned, there is no much cross- examination of this witness, though he has stated that he could not able to give the colour of the clothes of accused persons which were worn by them on that particular day. However, he has stated that A1 was wearing Jeans pant and full arm shirt. This aspect in fact has been corroborated by the evidence of PWs.1 & 2 also. Looking to the above said evidence, he has given explanation as to how he could identify A1 and A2 on that particular day and the said factum has not been controverted in the course of cross-examination. Hence, there is no reason to disbelieve this witness with regard to the identification as he has given special reasons for the same.
174. PW-6 is no other than the cousin brother of A1. We have already discussed in detail the evidence of this witness and he has stated that on the day of the incident, he handed over the Car as requested by A1, belonged to PW-5 at about 9.30 a.m., near KSRTC bus stand, Hunsur. He has also stated that when he was waiting there, A2 and A3 also came to that particular spot and A1 actually introduced A2 and A3 to this witness, because of that introduction he has stated that he could able to identify A2 and A3 as the same persons introduced by A1 who are before the court. The special reasons given by him to identify A2 and A3 is that on that particular day, the accused Nos.2 & 3 came to the said spot on a Pulsar motorcycle and gave that motorcycle to this witness and all the three persons took the Indica Car and went away from that place by telling this witness that, as and when they telephone to this witness he has to go to that particular spot on the motor cycle belonged to A2 and A3.
175. He has further deposed with regard to the identification that, on the same day at about 6.30 p.m., on the request made by A1, he went along with PW-7 to Ponnampet road in Gonikoppa bus stand and he found the Indica Car parked by the side of the road. This witness (PW-6) telephoned to A1 and at about 6.30 p.m., all the accused persons came to that particular spot and A2 and A3 took their Pulsar Motorcycle from this witness, as at a distance of 10 feet, there was a shop and an electric bulb was burning and in that light, he could able to see A1 to A3; A1 was also went away from the spot in a bus giving the amount to PW-6 towards the rentals of the Car. So far as this specific identification is concerned, not even a single point is touched in the course of cross-examination as to why he could not able to identify A2 and A3. Therefore, prior to and after the alleged incident, the accused Nos.1 to 3 were together seen by this witness. A1 to A3 were very specifically identified by this witness before the court, on the ground that he had lot of time to converse with A2 and A3 and actually they gave their motorcycle to him and later, he returned the said motor cycle to A2 and A3 as noted above. Therefore, there is no reason as to why the evidence of this witness has to be disbelieved when nothing has been elucidated in the course of cross-examination.
176. PW-7 also in the similar fashion stated that this witness accompanied PW-6 and as PW-6 was moving on the motorcycle of A2 and A3 PW-7 also went along with PW-6 on his motorcycle. He has stated that in the evening at about 5.00 p.m., PW-6 received a telephone call from A1 and accordingly PW-6 and 7, went to Ponnampet road at Gonikoppa and saw the Indica car was parked near the road. After some time, A1 to A3 all of them came to that particular spot and in fact, A1 shown A2 and A3 to this witness and also introduced them. A2 and A3 took their motorcycle from PW-6 and in fact, PW-6 took the Car from Ponnampet and this witness went on his motor cycle and after handing over the said Car to PW-5 thereafter, PWs. 6 & 7 came back on the motor cycle of PW-7. Again, there is absolutely no cross-examination so far as this identification is concerned. Concentration was bestowed with regard to in which direction the Car was parked at Gonikoppa and further suggested to this witness that this witness never accompanied PW-6 and the said suggestion has been denied by this witness. Therefore, there is no much dispute in the course of cross- examination with regard to the identification of A2 and A3 along with A1 at that time.
177. PW-13 another witness, Cashier in the Petrol Bunk, situated in University Campus has deposed that on the date of the incident, the said Indica Car was stoped in the petrol bunk for the purpose of filling the diesel and in that context, he has seen A1 to A3 and in the hind seat, he saw a lady and a child. A2 was actually driving the Car. About 2-3 days later, he has read the news in the paper and videograph of the child and the lady in the TVs. and also the photos of A1 to A3. Therefore, he remembered those persons and deposed before the court. In the course of cross- examination, it is suggested that he has not given any bill for having filled the diesel to the said Car. We have already discussed about this particular aspect, there is no need to re-iterate the same. He has specifically stated that as the hind windows of the said Car were kept open, therefore, he could able to identify A1 to A3, the deceased and a child. Except the suggestion made to the effect that no incident as such has happened, nothing meticulously examined with regard to the identification of A1 to A3.
178. PW-14 Mr. Lakshmana, who was working as Police Constable in V.V. Puram mobile Police Station. He has stated that on 29.6.2011, he was on duty between 8 .00 a.m., to 1.00 p.m., at Paduvarahalli Circle. He has stated that, at about 11.00 a.m., a Tata Indica Car came from Mysuru City and proceeding towards Hunsur and it was parked near Paduvarahalli circle and he has seen A1 to A3 getting down from the said car and one of them i.e., A1 went towards Valmiki road and other two went on Paduvarahalli road. After some time, the other two persons i.e., A2 and A3 came to the spot and this witness talked with them, as the said vehicle was parked by them on the road. Therefore, he told them to shift the car from that particular place and they have specifically told that they are waiting for another person and as soon he comes, they will move out. It is further stated that about ½ an hour later, another person A-1 also came along with a lady and a child and thereafter, all those persons went towards Hunsur in the said Car. He has specifically identified the said Tata Indica Car and A2 and A3 and also stated that A2 was driving the said Car. Though in the course of cross-examination, he could not able to give any identification marks, as well as the clothes which were worn by A2 and A3, but has stated that A1 was wearing a Jeans pant and a full arm shirt which is corroborated by other witnesses and also stated the lady was wearing red colour saree, which is also corroborated by other witnesses. He has stated that on that day A2 and A3 were standing at a distance of 25 to 30 feet, therefore, he could able to identify, them.
Again, there is no cross-examination so far as this identification is concerned. Except putting casual suggestion that he has not seen the said Car and A1 to A3 at all on that particular day. Mere suggestion, in our opinion, do not constitute any valid proof, unless, it is elicited in the course of cross-examination that, these witnesses have deposed falsehood before the court for the purpose of falsely implicating A1 to A3. There is absolutely no suggestion as to what interest these witnesses have got in this regard. Of course, PW-14 could not have identified each and every person who passes through the said road, but the special reasons have been given by him that he talked with A2 and A3 on that day and directed them to shift the Car; perhaps that may be reason, he could able to identify the accused 2 & 3 before the court.
179. By looking to the above said evidence, though identification parade has not been conducted by the Investigating Officer, but the said persons shown by the police to the witnesses during the course of investigation as the natural corollary. Further added to that, all the witnesses have seen the photographs and videographs of accused in the TV, therefore, there are chances of they remembering witnessing A1 to A3 at the above said instances. Therefore, we do not find any strong reasons to hold that non conducting of the Test Identification Parade would in any manner discard or eradicate the evidence of these witnesses. Therefore, in our opinion, the prosecution has also proved the identification of A1 to A3 in connection with this case as noted supra.
180. DISCREPANCIES IN RECORDING THE STATEMENT OF THE ACCUSED U/S.313 OF CR.PC.:
The learned counsel for the appellants, so far as A1 is concerned, has submitted that in Q.No.91, the learned Sessions Judge has not in detail put the incriminating material with regard to recovery of the dead body at the instance of the accused Nos.1 to 3. But, distorted complicated, comprehensive question has been framed stating that – “PW-34 has further stated that they found the dead body of a female in a depth of 10 – 15 feet, from the left side of the Bagamandala road and thereafter, he shifted the dead body to the Hospital and handed over the dead body to the legal representatives after Post Mortem examination.”
181. The learned counsel for the appellants in this regard has relied upon a ruling reported in ILR 1991 KAR 1542 in the case of State Vs. Dashrath wherein, the Division Bench of this court has held that – “Section 313 Cr.PC., - Object, purpose and purport – “Personally to explain any circumstance appearing in the evidence against him”: Scope – Questioning by court in relation to all incriminating circumstances, inspiring confidence in accused in simple language, specific understandable by ignorant and illiterate not lengthy, comprehensible single question for single circumstance – Appropriate questions to be framed after comprehensive marshalling of evidence with grip of the facts of the case – Duty & responsibility of Magistrates & Sessions Judges explained.”
182. In another decision in Criminal Referred Case No.1/2012 vide Judgment dated 22.9.2017, this court has further relied upon a decision reported in AIR 2015 SC 310 in the case of Nar Singh vs. State of Haryana, wherein, the Hon'ble Apex court has observed that – “Non putting of all the incriminating materials to the accused is fatal to the prosecution, but the accused cannot be acquitted on that ground and the court has to actually remit the matter to the trial court to make an endeavour to dispose of the case after recording the statement of the accused u/s.313 of Cr.PC., in proper manner.”
In the above said decision, the right of the accused was considered at paragraph 14, quoting paragraph 32 of the Hon'ble Apex court Judgment, and observed that – “xxxx. When there is omission to put material evidence to the accused in the course of examination u/s.313 of Cr.PC., prosecution is not guilty of not adducing or suppressing such evidence; it is only the failure on the part of the learned trial court. The victim of the offence or the accused should not suffer for latches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance between conflicting rights and duties.”
183. In fact, the accused has to establish before the court that non putting of certain incriminating materials, he was not able to understand the questions put to him, because of their comprehensive nature. In this case, though some of the questions put by the trial court are comprehensive in nature, but they are not totally un-understandable. The accused are also defended by a senior counsel in this regard. The accused would have made known to their counsel about the said fact and requested the court to split up the questions in simple manner, but that has not been done at the earliest point of time. Further added to that, the same facts are culled out from the evidence of PWs.8 & 32, it clarifies the situation that those witnesses have also stated about A1 to A3 leading the police and the panch witnesses to the spot where the dead body was recovered. Therefore, from other witnesses if the same factual aspects are extracted and put to the accused persons though there is no such question extracted from one of the witnesses, then there cant be any serious irregularity in recording the statement of the accused persons.
184. In this context, it is also worth to refer here a case reported in AIR 2001 SC 3678 between Sukhdev Yadav and Others and State of Bihar, wherein the Hon'ble Apex court at paragraph 15 has observed that – “15. True, as noticed above there are lapses, but the question that arises for consideration is whether any prejudice has been caused by reason of such a lapse, if the answer thereto is in the affirmative obviously it will have a serious impact on the trial but if in the event, however, it is on the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eye- witnesses account as available on record cannot but be termed to be trustworthy and by reason therefore, the lapses stand over shadowed by the testimony of the eye- witnesses.”
Therefore, non putting up of some questions, and putting some comprehensive questions to the accused, the accused has to establish before the court that what prejudice it has caused to that particular person and in spite of putting that question, why he answered those questions. These questions, have not been answered to the court so as to come to a conclusion that the accused has not understood what the witnesses have said against him and that, he has casually given the answers to the questions put to him u/s.313 of Cr.PC., Therefore, we do not find any strong reasons on this point also in order to draw any adverse inference against the prosecution.
185. Looking to the above said facts and circumstances of the case, in our opinion, the prosecution has established the circumstances noted above beyond reasonable doubt so far as A1 to A3 are concerned. Once the prosecution has able to establish the last seen theory of the accused and deceased together and the nexus of time, between the time of the accused persons taking the deceased with them and the detection of the dead body is so small, in such an eventuality, it is the onus on the accused to explain as to what happened to the deceased after they took the deceased along with them. Though, we found the child was left in the lurch and it was later handed over to the Child Welfare Committee and subsequently, handed over to PW-3, but the fact remains that how the death of the deceased has occurred has not been explained by the accused. In fact, Section 106 of the Indian Evidence Act throw such responsibility on the accused to explain after taking the deceased with them, when they parted with the deceased and what happened later. In the absence of such elucidation of any explanation from the accused persons, in our opinion, it will also add as an additional link to strengthen the proven circumstances by the prosecution.
186. Therefore, looking from any angle though there are some contradictions and omissions and discrepancies in the prosecution case, but the core of the prosecution case is not shaken. Hence, we find absolutely no grounds to interfere with the judgment of conviction and sentence passed by the trial Court so far as A1 to A3 are concerned.
187. CRIMINAL APPEAL NOS.5 AND 167/2015:
Criminal Appeal No.5/2015 is filed by the State and Criminal Appeal No.167/2015 is filed by PW-3 challenging the acquittal of A1 to A4 for the offence punishable under section 120B of IPC. As the above said appeals calls for consideration of similar set of facts, they are taken together for discussion.
188. As we have already observed while dealing with the case of A1 to A3, we found there is absolutely no semblance of material to connect A4 with A1 to A3. It is the case of the prosecution that A1 to A4 have conspired together and hatched a conspiracy in order to do away the life of the deceased. Except two witnesses i.e., PWs.19 and 22, no other witnesses have examined in order to prove the conspiracy between A1 to A4. It is worth to refer here the evidence of these two witnesses.
189. The case of the prosecution is that just prior to the incident, all the accused persons 1 to 4 were sitting on a bridge near the house of PW-22 Somashekara. PW-19 had been to that particular place and found A1 to A4 were sitting on the bridge and talking with each other. When this witness and other witness PW-22 went to that particular place, the accused persons stopped talking and went away from the spot. But this witness though supported the case of the prosecution but not stated anything about any of the accused persons taking with regard to the deceased either in the examination in chief or in the cross examination. It is not even suggested what was the talks that has been taken place between A1 to A4. Therefore, the evidence of this witness though he supported the case to some extent, it is not sufficient to draw any inference that the accused were sitting at that particular place and hatched conspiracy to do away the life of the deceased. The evidence of PW-19 is so distorted, no prudent man can come to the conclusion that it was the conspiracy hatched for the purpose of doing away the life of the deceased and to destroy the evidence.
190. PW-22 Somashekar, in fact has not supported the case of the prosecution in this regard. It is also suggested to him that all the accused persons 1 to 4 were talking together nearby the house of this witness and they were talking with regard to what they have to do the dead body etc., But the said suggestions were also denied. Therefore, there is absolutely no evidence, on the side of the prosecution to draw any inference with regard to any conspiracy between A1 to A4. Therefore, the acquittal of A4 by the trial Court is proper and correct and there is no room to interfere with the judgment of acquittal of A4.
191. The appellant Mr.M.D. Raghu in his appeal has also prayed for victim’s Compensation and direct the accused persons to pay the victim’s compensation to the appellant. Of course, the appellant has lost his wife. But nowhere in the evidence before the court, he has explained as to what is the loss he sustained and how he is entitled for compensation under the Victim Compensation Scheme, 2018 against the accused persons. He has not even stated in the evidence and quantified the compensation. Further, added to that, the trial Court has imposed fine of Rs.10,000/- for the offence punishable under section 302 of IPC and Rs.5,000/- for the offence punishable under section 201 of IPC and another sum of Rs.5,000/- for the offence punishable under section 364 of IPC. However, the trial Court has not ordered any compensation out of the fine amount in favour of anybody. It is also evident from the record that PW-3 has gainfully employed as an Asst. Public Prosecutor and though he has lost his wife, he is not a dependant on his wife. In a criminal proceedings, the victim’s compensation is mainly concentrated with regard to the female victims or the relatives of the victims who are dependants on the victims and sustained any loss due to the death of their kith and kin and the deceased was in fact the back bone of the family and the only earning member and the entire family was dependent upon such person or the victim has to suffer throughout the life need some medical assistance and also other assistance throughout the life. In such an eventuality, the courts have to concentrate in granting Victim’s compensation. Therefore, under the above said circumstances, the victim’s compensation which is not ordered by the trial Court is not an infirmity in the judgment. However, as a matter of fact, the appellant M.D. Raghu has lost his wife and also he has sustained some mental agony. In the absence of quantification of the same, we feel it just and necessary to award compensation of Rs.15,000/- out of the fine amount if it is deposited by the accused.
192. With this observation, we do not find any strong reasons to award any victim’s compensation independent to that of the fine amount imposed by the trial Court. Therefore, the appeal filed by the appellant M.D. Raghu in Criminal Appeal No.167/2015 deserves to be partly allowed.
193. CRIMINAL APPEAL NO.86/2015:
The State has come up with the above appeal seeking enhancement of the sentence against the accused. The learned Special Public Prosecutor has strenuously contended before the court that it was canvassed before the trial Court that the accused are liable to be punished with maximum punishment of death penalty u/s.302 of IPC. It is contended that A1 being the close relative in fact has persuaded the hapless lady to accompany him and when she was helpless, all the accused persons committed the murder which is diabolic in nature. Therefore, maximum punishment ought to have been imposed.
194. The learned counsel also relied upon the decision of the Hon'ble Apex Court reported in 1983 AIR 957 between Machhisingh & Others and State of Punjab for the purpose of consideration of the court as to under what circumstances, the death sentence has to be imposed on the accused.
195. As we have examined the entire materials on record, it is due to some motive, A1 has in fact, taken the assistance of A2 and A3 for the purpose of committing the offence. There is absolutely no allegation against A1 to A3 that they were cruel in nature and they were anti social elements. Though A1 was in a position to create trust in the mind of the victim as a close relative, but in the absence of other circumstances to show that the accused was cruel and he has incorrigible to the society, normally the minimum sentence requires to be imposed. Therefore, imprisonment for life is the rule and death sentence is an exception, only if it falls under the category of rarest of rare cases for the purpose of imposing maximum punishment. A1 to A3 are young persons, there is no previous bad antecedents and they were also having families. Therefore, we are of the opinion that there is no interference required with the sentence awarded by the trial Court.
196. In fact, we have specifically gone through the order on sentence passed by the trial Court on 16.9.2014. The trial Court has passed a detailed order considering the judgment in Machhisingh’s case and also in another Supreme Court decision reported in 2005 CRL.LJ. 333 between State of Uttar Pradesh and Kishan considering the principles laid down in the said case and also the principles laid down in a case reported in 2005 SAR CRIMINAL 585 between State of Madhya Pradesh and Saleem @ Chamaru and another. The trial Court by giving cogent reasons was of the opinion that this case would not fall under the category of rarest of rare cases. The opinion expressed by the trial Court is also a possible and plausible view with reference to the sentence. Therefore, when the view expressed by the trial Court is also a possible view, normally, the appellate court should not interfere with such order on sentence. Therefore, we do not find any strong reasons to modify the sentence or enhance the sentence as prayed by the State.
For the above said detailed discussions, we proceed to pass the following:
ORDER (i) Criminal Appeal No.1032/2014 filed by A2 and A3; Criminal Appeal No.1033/2014 filed by A1; Criminal Appeal No.5/2015 filed by the State against A4; and Criminal Appeal No.86/2015 filed by the Stage against A1 to A3 are hereby dismissed.
(ii) The Criminal Appeal No.167/2015 filed by the complainant – M.D. Raghu is hereby Partly allowed by awarding compensation of Rs.15,000/- out of the fine amount imposed by the trial Court on A1 to A3 for the offence punishable under sections 302, 201 and 364 of IPC.
Sd/- JUDGE Sd/- JUDGE PL*