IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.184/2015 c/w.
CRIMINAL APPEAL NO.1354/2018, CRIMINAL APPEAL NO.1485/2018.
IN CRIMINAL APPEAL NO.184/2015: BETWEEN:
Pradeep Chathri @ Pradeepa S/o Ramesh Chathri Aged about 27 years R/at Deva’s Vatara 1st Floor, 2nd Main Road Srinivagilu, Koramangala Bangalore-560 034.
Permanent resident of Meerak, Pratap Village, Meerak Post Darjeeling Dist.
(By Sri S. Sunilkumar, Advocate for Sri Chandrashekar R.P., Advocate) AND:
State of Karnataka by HSR layout Police … Appellant Bangalore High Court Building Complex Represented by learned SPP Bangalore-560 001.
… Respondent (By Sri Vijayakumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of the Cr.P.C praying to set aside the order dated 16.09.2014 and Sentences dated 17.09.2014, passed by the Presiding Officer, Fast Track Court-XIV, Bangalore City, in S.C.No.758/2010, convicting the appellant/accused No.3 for the offences punishable under Sections 302, 392 r/w 34 of Indian Penal Code.
IN CRIMINAL APPEAL NO.1354/2018: BETWEEN:
Preetham Thamang @ Preetham S/o N.B. Thamang Aged about 27 years R/at Deva’s Vatara 1st Floor, 2nd Main Road Srinivagilu, Koramangala Bangalore.
… Appellant (By Sri M. Sharass Chandra, Advocate) AND:
The State of Karnataka by HSR Layout Police Station Represented by State Public Prosecutor High Court Building Bangalore.
… Respondent (By Sri Vijayakumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of the Cr.P.C praying to set aside the judgment of conviction dated 16.09.2014 and Sentences dated 17.09.2014, passed by the Presiding Officer, Fast Track Court-XIV Bengaluru in S.C.No.758/2010, convicting the appellant/accused No.4 for the offences punishable under Sections 302 and 392 r/w 34 of Indian Penal Code.
IN CRIMINAL APPEAL NO.1485/2018: BETWEEN:
Vivek @ Bikas S/o Dule Ram Aged about 30 years R/o C/o Sathyanarayana No.14, Gurukrupa Nilaya 2nd Cross, 29th Main, BTM Layout Bengaluru-560 001.
… Appellant (By Sri M. Sharass Chandra, Advocate) AND:
The State of Karnataka by HSR Layout Police Station Bangalore City – 560 001 Represented by the State Public Prosecutor High Court Buildings, Bengaluru-560 001.
… Respondent (By Sri Vijayakumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of the Cr.P.C praying to set aside the judgment of conviction and Sentence dated 16/17.09.2014, passed by the Presiding Officer, Fast Track Court-XIV Bengaluru in S.C.No.758/2010, convicting the appellant/accused No.2 for the offences punishable under Sections 302 and 392 r/w 34 of Indian Penal Code.
These Criminal Appeals having been heard and reserved on 04.01.2019 coming on for pronouncement of judgment this day B.A.PATIL, J, delivered the following:-
J U D G M E N T Criminal Appeal No.184/2015 is preferred by accused No.3; Criminal Appeal No.1485/2018 is preferred by accused No.2 and Criminal Appeal No.1354/2018 is preferred by accused No.4 being aggrieved by the judgment and order of conviction and sentence passed by the Fast Track Court-XIV, Bengaluru City in SC.758/2010, dated 16/17.9.2014.
2. We have heard Sri Chandrashekhar R.P., and Sri M.Sharass Chandra, learned counsel appearing for the appellants-accused and Sri Vijayakumar Majage, learned Additional SPP for the respondent-State.
3. The genesis of the case of the prosecution is that accused Nos.1 to 4 were acquainted with deceased Amruth Roy and Janaki and they used to visit their house. After coming to know that deceased are very rich and leading luxurious life, they hatched a plan to commit the murder of the deceased and also to commit theft in their house. In that context, accused persons purchased knives and on 8.2.2010 they visited the house of the deceased and they have chitchatted with them till 10.30 p.m. At that time, accused No.1 requested Amruth Roy to drop in his car to his house, for which deceased Amruth Roy agreed. Thereafter, all the accused boarded the car of the deceased bearing Regn.No.CTX.300. Accused No.2 sat at front left seat, accused No.1 sat on back left seat, accused No.3 sat on back right seat and accused No.4 sat on the middle of back seat. When the car reached Agara Lake Tank Bund at 11.30 p.m., all the accused in furtherance of common intention to commit the murder of Amruth Roy, accused No.3 held the neck of the deceased Amruth Roy from backside, accused No.2 as per the instruction of accused No.1, stabbed the deceased on his neck with knife, accused Nos.1, 3 and 4 also caused stab injuries on the neck, left and right ribs with knife and thereby committed his murder and thereafter thrown the dead body near tank bund fence.
4. Thereafter, in furtherance of common intention of committing the theft in the house of the deceased Amruth Roy, all the accused came to his house in an autorickshaw. Accused Nos.1 and 2 came to the house and knocked the door, when Janaki, wife of the deceased Amruth Roy opened the door, accused Nos.1 and 2 told her that they require the driving license of Amruth Roy as police have held up his car. In pursuance of the said request, Janaki went inside the room to bring the driving license, at that time, accused No.1 held her mouth and slit her neck with knife. In the meanwhile, accused No.2 also caused stab injuries on her right chest, ribs, hands and thereby committed her murder. Thereafter, accused persons took mobile phones, wrist watch, ATM card, debit card and purse. They also took the mobile, key chain, two ATM cards found in the house of the deceased.
5. It is further case of the prosecution that when PW.1-R.Sridhar, driver of an autorickshaw was proceeding from Koramangala to Agara Lake on 9.2.2010, he saw 4 to 5 persons on the tank bund near the fence observing something curiously. By stopping his autorickshaw, he went and saw a dead body aged about 20 to 25 years and came to know that some miscreants have committed the murder of the said person for some reason and thrown the dead body near the fence. He noticed the injuries on the dead body. He also noticed a black colour Premier Padmini car parked at a distance of 3 to 4 meters away from the said place. Immediately he went to Police Station and filed the complaint as per Ex.P1. On the basis of the said complaint, police registered a case in Crime No.26/2010 for the offences punishable under Section 302 r/w. Sections 201 and 34 of IPC. After completion of investigation, charge sheet was laid against accused Nos.1 to 4. Thereafter, VI Additional CMM Court, Bangalore, took cognizance and after furnishing the copies of charge sheet to the accused, committed the case to the Sessions Court. The Sessions Court took cognizance and secured the presence of accused Nos.1 to 4 who were in judicial custody and after hearing the learned counsel for the accused regarding charge, framed the charge which was read over to the accused. As the accused pleaded not guilty and wanted to be tried, the trial was fixed.
6. In order to prove its case, the prosecution in all got examined 34 witnesses and got marked Exhibits P1 to P63 and 46 Material Objects. After closure of the prosecution case, the statement of the accused came to be recorded by putting incriminating material as against them. Accused persons denied the same, but however, they did not lead any evidence on their side. After hearing the learned counsel appearing for the parties, the impugned judgment and order of conviction and sentence came to be passed whereunder accused Nos.1 to 4 have been convicted for the offences punishable under Sections 302, 392 r/w. Section 34 of IPC. Challenging the legality and correctness of the impugned judgment and order, the appellants- accused are before this Court.
7. Learned counsel appearing for the appellants-accused submitted that the impugned judgment and order of conviction and sentence are opposed to law, facts, circumstances and probabilities. They submitted that the entire case is based on circumstantial evidence. In order to convict the accused, chain of all the events or circumstances has to be proved by the prosecution and if the chain of events does not lead to the only conclusion that the accused are held guilty of the offence, then under such circumstances, benefit of doubt ought to have been given to the accused. They further submitted that the prosecution has relied upon the circumstances like last seen theory, recovery, call details and motive, but none of the circumstances has been clearly and cogently established by the prosecution. Though there is no connecting link between the accused and the recovery, the trial Court without proper appreciation of the evidence on record, has wrongly convicted the accused. They further submitted that though the prosecution has relied upon last seen theory and examined PW.4, as per the evidence of PWs.4 and 34, in the test identification parade PW.4 has not identified the accused. Even the test identification parade conducted by PW.34-Tahsildar is not in accordance with law. They further submitted that the alleged incident has taken place on 9.2.2010, but witness says that he has seen the accused persons proceeding towards the house of the deceased on 10.2.2010. These glaring discrepancies have not been properly appreciated by the trial Court. They further submitted that admittedly this is the case of double murder and though the recovery of knife is established, which is the knife that has been used for commission of murder of the deceased Amruth Roy and which is the knife that has been used to commit the murder of the deceased Janaki has not been properly established. Even the FSL report at Ex.P32 also does not specifically disclose the fact that the blood stains which were found on the knives (MOs.11 and 12) with which they have committed the murder of the deceased. All the articles together have been scientifically analyzed and a common report has been given stating that the blood stains were that of ‘A’ group. But while coming to the conclusion, even blood of either the accused or the deceased was not collected to connect the said link. They further submitted that the watch which was recovered at the instance of accused No.2, is also not clear as there is no reference with regard to its model number and other identity. Under such circumstances, the trial Court ought to have given the benefit of doubt. They further submitted that the SIM cards and ATM cards recovered have also not been clearly established as to whom the said cards belong to, so also the mobile phones which have been recovered. They further submitted that though the debit card was recovered at the instance of the accused from the shop, it is the specific case of the prosecution that there were no transactions and if the said debit card was swiped, then under such circumstances, there would have been banking transactions and in order to establish the same, no document has been produced by the prosecution, which itself clearly goes to show that the said witness has been planted only to inculpate the accused persons. They further submitted that the knives-MO.Nos.11 and 12 have not been seized from the place where they have been recovered. The said articles have been taken to the shop and after showing the said articles to the owner of the shop they have been seized. But the panchanama - Ex.P6 speaks otherwise that the said knives were seized on the spot. These glaring contradictions have not been properly looked into by the trial Court. The trial Court without appreciation of the evidence on record has come to a wrong conclusion and has convicted the appellants-accused. On these grounds, they prayed to allow the appeals and to set aside the impugned judgment of conviction and order of sentence.
8. Per contra, learned Additional SPP has vehemently argued by submitting that in order to establish the last seen theory, the prosecution has examined PW.4, who has clearly deposed that he had been to the house of the deceased Amruth Roy in order to see the car which was purchased by the deceased Amruth Roy. He saw the accused persons alighting from an autorickshaw and going towards house of the deceased. There is no evidence produced by the accused to discard the evidence of PW.4. He further submitted that PW.4 was acquainted with accused Nos.1 and 3 and he has identified accused No.4 in the test identification parade. He further submitted that the recovery evidence which has been produced before the trial Court is a strong circumstance and the articles which have been seized clearly go to show that they are standing in the name of the deceased Amruth Roy. The said articles have been recovered from accused Nos.1 to 4 and the accused persons have not come with any explanation as to under what circumstances the said articles were in their possession. He further submitted that accused No.2 has tried to use the debit card and left the same in the shop, which was recovered at the instance of the accused and he has not come up with any explanation. He further submitted that the FSL report at Ex.P32 clearly indicates the grouping of the blood as ‘A’ group on all the articles which have been seized and sent for chemical analysis. He further submitted that the accused persons have not come out with any specific averment regarding the possession of the articles belonging to the deceased persons. He further submitted that there is a strong evidence against the accused with regard to motive, recovery and they point out only towards the guilt of the accused. The appellants have not made out any good grounds to interfere with the impugned judgment and order passed by the trial Court. On these grounds, he prayed to dismiss the appeals.
9. Before going to consider the submissions made by the learned counsel appearing for the parties, we feel it just and proper to place on record the evidence which was produced before the trial Court.
i) PW.1 is the driver of an autorickshaw. He has deposed that when he was proceeding towards Jakkasandra, he noticed 4 to 5 persons curiously observing something at about 2.00 p.m. He went by stopping his autorickshaw and on the bund of the tank near the fence, he saw a dead body of a male person with injuries on the neck, stomach and other stab injuries. He also noticed a black colour Premier Padmini car bearing Regn.No.CTX.300. Thereafter, he went to the Police Station and filed the complaint as per Ex.P1. He has further deposed that police came to the spot and seized a knife, blue colour pant and the said car. During the course of cross-examination, nothing has been elicited so as to discard his evidence.
ii) PW.2 is the neighbour of the deceased Janaki. He has also deposed that he was acquainted with the deceased Amruth Roy and Janaki. When he was in the house in the evening hours, the police came and showed the photographs of the deceased Amruth Roy. He told the police that they are residing by the side his house. When they went to the house of the deceased and opened the door they noticed that all the articles were scattered and body of the deceased Janaki was lying in a pool of blood. By seeing the same, he lodged the complaint as per Ex.P2. He has further deposed that by noticing, he came to know that gold articles, ATM cards have been stolen from the house. During the course of cross-examination, he has deposed that two accused persons used to come to the house of Janaki and he has seen them.
iii) PW.3 is the pancha to the spot mahazar at Ex.P3, by which MO.Nos.1 to 10 were recovered from the spot.
iv) PW.4 is the friend of the deceased Amruth Roy. He has deposed that deceased informed him that he has purchased a car and asked him to come and see the said car. Accordingly, he went to the house and has seen the car. At that time, the deceased Janaki was also in the house. After having tea, he left. Even Amruth Roy also told that he would come with him. At that time, Janaki told them to bring curd. Both of them went together and after taking the curd Amruth Roy went and PW.4 was waiting for the bus. He has further deposed that at that time, an autorickshaw came with four persons and out of them two persons were known to him since 7 to 8 years. Their names are Pradeep-accused No.3 and Santhosh-accused No.1. They were acquainted with Amruth Roy and they used to often come to his house. By that time, bus came and he boarded the bus to go to Rammurthynagar. PW.4 has further deposed that all the four persons after alighting autorickshaw went towards the house of Amruthesh. On the next day, at about 7.30 to 8.00 a.m. through Rajadhani newspaper he came to know that Amruthesh and Janaki have been murdered and immediately he rushed to their house. As the house was locked, he went to the Police Station and informed them. He has further deposed that on 25.10.2010 he was called to the Police Station, where four persons were shown to him and out of them, he noticed accused No.3-Pradeep and accused No.1-Santhosh. He also came to know through police that the names of other persons are Vikas-accused No.2 and Preetham-accused No.4. He identified the said persons. During the course of cross-examination he admitted the suggestion as true that he is a close friend of the deceased Amruth Roy. He has further deposed that the house of Amruth Roy is situated at a distance of 50 to 100 meters from the bus stop and in order to go to the said house, he has to take a turn and he cannot see the door from the bus stop straightaway as the house is situated little bit inside. He has further deposed that he only saw the four persons going from the cross road. Except that nothing has been elicited from the mouth of this witness.
v) PW.5 is also a friend of the deceased Amruth Roy. He identified the bodies of the deceased and he also identified the accused persons in the Police Station. All other suggestions made during the course of cross-examination have been denied by this witness.
vi) PW.6 is the pancha to recovery mahazar at Ex.P6 by which two knives MO.Nos.11 and 12 were recovered at the instance of accused Nos.1 and 4. During the course of cross-examination, it has been elicited that each of accused Nos.1 and 4 have produced one knife. It has been further elicited that he cannot definitely say which knife has been produced by whom as both of them are of same kind. Except that nothing has been elicited from the mouth of PW.6.
vii) PW.7 is the pancha to inquest mahazar at Ex.P9 in respect of the body of the deceased Amruth Roy.
viii) PW.8 is the pancha to recovery panchanama at Ex.P10 by which MO.Nos.14 to 21 and 22, clothes of the deceased Janaki and other articles including the bed sheet found near the body of the deceased were recovered.
ix) PW.9 is the witness with whom the deceased was also working. He has deposed that deceased was using Samsung and China set mobiles. He also identified the wrist watch and the said mobiles. He also identified the said articles through photographs as per Exs.P11 and P12. During the course of cross-examination, he has admitted the suggestion as true that he has not seen the watch and mobiles and he has also produced Ex.P36-warranty card to the police. During the course of cross-examination, he has also admitted the suggestion as true that he is deposing at the instance of the police.
x) PW.10 is also a person who is working in Stapier Head Company at Koramangala. He has deposed that PW.9 is his Officer and deceased Amruth Roy was also working in the said Company. He identified watch-MO.No.23, China set mobile- MO.No.24 and Samsung mobile-MO.No.25, which were being used by the deceased Amruth Roy.
During the course of cross-examination, nothing has been elicited from the mouth of this witness.
xi) PW.11 is the Police Constable who carried the seized articles for chemical examination.
xii) PW.12 is the Woman Police Constable who handed over the dead body of the deceased Janaki to her relatives after postmortem examination.
xiii) PW.13 is the Junior Engineer who has drawn the sketch of the incidents at both the places as per Exs.P14 and P15.
xiv) PW.14 is the pancha to inquest mahazar in respect of the body of the deceased Janaki as per Ex.16.
xv) PW.15 is the pancha to inquest mahazar in respect of the body of the deceased Amruth Roy as per Ex.P9.
xvi) PW.16 is the pancha to recovery mahazar at Ex.P17. He has deposed that accused Nos.1 to 3 took him along with the police to the place where they were residing and produced mobiles which were beneath the bed. They also produced blood stained T-shirt and knife. The said articles were seized by drawing a mahazar. During the course of cross-examination, he has deposed that after coming to know that police have come, he went to the place where blood stained clothes were hanging including one T-shirt and a shirt. He has further deposed that at the time when the mahazar was drawn he had been to have tea and he does not know the names of the three accused who brought them.
xvii) PW.17 is the pancha to recovery mahazar whereunder accused No.1-Santhosh produced one watch, mobile phone, T-shirt and the same were seized by the police. The suggestions made during the cross-examination have been denied by this witness.
xviii) PW.18 is the doctor who conducted autopsy over the bodies of both the deceased Amruth Roy and Janaki and issued postmortem reports as per Exs.P18 and P19 respectively. He has also opined that the death is due to shock and haemorrhage as a result of the injuries sustained by the deceased. During the course of cross- examination, much has not been elicited so as to discard his evidence.
xix) PW.19 is the doctor who examined accused Nos.1 to 4 and has issued the wound certificates as per Exs.P22 to P25 respectively.
xx) PW.20 is the ASI who apprehended accused Nos.1 to 4 and produced them before the Investigating Officer by giving a report.
xxi) PW.21 is the Nodal Officer who collected the call details as per Ex.P26 in respect of mobile No.9742524512. He has also furnished phone ID, location of the user of the said mobile number and network details. He has also produced the details of the tower from which the said mobile was being used as per Ex.P27.
xxii) PW.22 is also a Nodal Officer. As per the requisition of police, he has also given call details in respect of mobile No.9611058605 as per Ex.P28.
xxiii) PW.23 is a Nodal Officer working in Tata Tele Service Office. He has given call details in respect of mobile number 9036740651 as per Ex.P30. During the course of cross-examination, he has deposed that since police did not ask as to in whose name the mobile is standing, he has not given the name.
xxiv) PW.24 is the Police Constable who went along with PW.20 in search of the accused and apprehended accused No.2.
xxv) PW.25 is the Scientific Officer who conducted chemical examination of the articles sent by the Investigating Officer and she has given her detailed report as per Ex.P32. In the said report, it has been mentioned that Article Nos.1 to 7, 9 to 16, 18, and 20 to 34 were stained with blood, which was of human blood and Article Nos.1 to 3, 5, 7, 10 to 14, 16, 18, 20 to 23, 25 to 34 were having ‘A’ group blood. During the course of cross- examination, nothing has been elicited so as to discard her evidence.
xxvi) PW.26 is the Cashier working in Titan Watch Shop. He has deposed that police showed him a warranty card, which he identified and after verification from the system, he came to know that the said watch was purchased by Amruth Roy and at the request of police, he has given requisite bill and the same was seized by drawing a mahazar as per Ex.P34. The invoice produced to the police and warranty card were marked as Exs.P35 and P36 respectively. During the course of cross- examination, he has deposed that he cannot say as to whether the said watch was purchased by the deceased Amruth Roy himself or some other person in the name of deceased Amruth Roy.
xxvii) PW.27 is the friend of the deceased Amruth Roy who sold his Premier Padmini Car to the deceased Amruth Roy on 4.2.2010.
xxviii) PW.28 has deposed that when he was sitting in the Phone World Shop police brought accused No.2-Vikas and asked the owner as to whether he has purchased any mobile in the said shop for which the owner told that he purchased a mobile by swiping a debit card. He produced the said debit card to the police. He has further deposed that owner of the shop also informed the police that on the same day accused No.2 had given the said debit card by saying that he has committed the murder of husband and wife and card belongs to them. The said debit card was seized by the police by drawing a mahazar at Ex.P37.
xxix) PW.29 is a person who has sold knife- MO.No.13 to the accused. He has not supported the case of the prosecution and has been treated as hostile. Even during the course of cross- examination, nothing has been elicited to substantiate the case of the prosecution.
xxx) PW.30 is a driver of an autorickshaw. In his presence accused No.2 produced MO.Nos.40, 41, 42, 43, 45, 46 and 31 - bag, blood stained pant, T-shirt, chopper, three ATM cards, two mobile phones, three key chains and the same were seized by drawing a mahazar as per Ex.P40.
xxxi) PW.31 is a witness who identified the warranty card. He has deposed that the MO.No.23- watch belongs to the deceased Amruth Roy. He also speaks about seizure of warranty card (Ex.P36) as per Ex.P41.
xxxii) PW.32 is the PSI who went in search of the accused persons and after apprehending, produced them before the Investigating Officer by giving a report as per Ex.P43.
xxxiii) PW.33 is the Police Inspector who took further investigation and after completion of investigation, filed the charge sheet against the accused. He also conducted test identification parade with the help of PW.34.
xxxiv) PW.34 is the Tahsildar who conducted test identification parade with the help of witness PW.4. She has deposed that on 24.5.2010 she called PW.4-Rakesh Kumar to the Central Jail and asked whether he can identify the accused persons. Thereafter all the four accused persons were made to stand along with 14 persons having similar features and PW.4 was requested to identify the accused. PW.4 identified accused No.2-Vivek and accused No.4-Preetham Thamang. PW.34 has given a report as per Ex.P61. During the course of cross-examination, a suggestion was made as to what was the reason for proper identification of the accused for which she has deposed that she cannot say anything. Other suggestions have been denied by this witness.
10. With the above evidence, now let us consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubt. It is an admitted fact that the entire case of the prosecution rests upon the circumstantial evidence. In order to bring home the guilt of the accused under circumstantial evidence, the prosecution has to link all the circumstances with one another and the Court will be in a position to see the chain of events and if the chain of events and important links have been established by the prosecution, then the case of the prosecution is said to have been proved. It is also well settled that the material circumstances if they point out to the guilt of the accused, then under circumstances also the Court can convict the accused for the alleged offences. The only thing which the Court has to see is that the said circumstances lead to one and the only conclusion towards the guilt of the accused without any second view and there should not be any other explanation and other hypothesis than the guilt of the accused.
11. Keeping in view the aforesaid proposition of law, if we consider the submissions made by the learned counsel appearing for the parties, the first circumstance on which the prosecution has relied upon is that the death of the deceased Amruth Roy and Janaki is a homicidal death. In order to establish the said fact the prosecution has got examined PW.15, the pancha to inquest mahazar in respect of the body of the deceased Amruth Roy as per Ex.P.9 and PW.14, the pancha to inquest mahazar in respect of the body of the deceased Janaki as per Ex.P16. The prosecution has also got examined the doctor-PW.18, who conducted autopsy over both the bodies and issued the postmortem reports at Exs.P18 and P19 respectively. PW.18, has also given his opinion as per Ex.P20. During the course of cross-examination this aspect has not been seriously challenged by the accused persons. Even during the course of arguments, the learned counsel for the accused- appellants herein have also not seriously disputed that the death of both the deceased is a homicidal death. In that light, the prosecution has clearly established the first circumstance.
12. The second circumstance on which the prosecution has relied upon is that accused persons were found near the place of the second incident and test identification parade conducted by the Tahsildar-PW.34. In order to prove the same, the prosecution has relied on the evidence of PWs.4 and 34. As could be seen from the evidence of PW.4, he has deposed that when he was waiting in the bus stop, he saw four persons alighting from an autorickshaw and in the meanwhile he boarded the bus and left. He has further deposed that all the four accused persons went towards the house of the deceased. During the course of cross-examination he has admitted that the road which leads to the house of the deceased from the bus stop is cross way and one cannot see the door of the house of the deceased from the bus stop. It is the submission of the learned counsel for the accused- appellants that merely because the accused persons have alighted near the bus stop and out of them he was knowing accused Nos.1 and 3, who used to visit the house of the deceased, no inference can be drawn that PW.4 identified the accused persons proceeding towards the house of the deceased. Until and unless a concrete evidence is produced by the prosecution, it cannot be said that the accused persons proceeded to the house of the deceased.
13. As could be seen from the evidence of PW.4, he has deposed that he was knowing accused Nos.1 and 3 coming to the house of the deceased. He has further deposed that he saw all the four accused persons alighting near bus stop. It is not seriously disputed during the course of cross- examination, that the said bus stop is not near the house of the deceased and accused persons alighting at that spot. In so far as this part of evidence of PW.4 is concerned, it is consistent. During the course of cross-examination, it has not been shaken. Though this witness has not seen the accused persons proceeding towards the house of the deceased, if this circumstance is seen along with recovery of some of the articles belonging to the deceased Amruth Ray and Janaki from the possession of the accused, inference can be drawn in this behalf to the effect that after alighting the autorickshaw, they went to the house of the deceased and after committing the murder, they have stolen the said articles. Evidence of PW.4 further discloses that accused persons were seen in vicinity of neighbourhood of crime little before the incident, coupled with recovery it substantiates the evidence of PW.4. Accused have not made out any case as to for what reason they came in an autorickshaw and alighted near the bus stop which was near to the house of the deceased. In the absence of any explanation, it can be inferred in this behalf that after alighting from autorickshaw, the accused persons went to the house of the deceased. In that light, the contention of the appellants that the said evidence is not sufficient is not acceptable.
14. Be that as it may, as could be seen from the evidence of PW.34, she conducted the test identification parade by calling PW.4 to the Central Jail. She has deposed that she made all four accused persons to stand in a row along with other persons who were having similar features. In all she has made to stand 14 persons in a row and out of them, PW.4 identified accused Nos.2 and 4, but he has not identified accused No.3 though he was acquainted with the said accused. Leave apart from this, if really PW.4 has seen all the four accused persons and out of them two persons were already known to them as they used to visit house of deceased, then under such circumstances, question of conducting test identification parade in respect of accused Nos.1 and 3 does not arise at all. Only in respect of the remaining accused persons, i.e., accused Nos.2 and 4, test identification parade ought to have been conducted by PW.34 by making them to stand in a row and PW.4 ought to have been requested to identify them. Though the method adopted is not in accordance with law, only on that ground, the case of the prosecution cannot be disbelieved.
15. It is well established principle of law that whenever test identification parade is to be conducted, the accused person should be made to stand in a row along with other accused persons or some other persons who are having similar features. After following such procedure PW.34 has to get the dresses of the accused persons changed by pointing out that whom the witness has identified them in the test identification parade and again after getting the dresses of the accused and other witnesses changed for the second time, she has to change the position of the accused and other persons and make a request to identify the accused. The said proceedings are to be recorded and thereafter in the similar way again for the third time also, similar method has to be adopted to identify the accused by changing the position of the accused. At that time also if again the witness identifies the accused persons, then under such circumstances, it can safely be held that the witness has seen earlier the said accused persons and identified them at the time of test identification parade. Under such circumstances, the Court can rely upon such evidence.
16. In the instant case, it is the contention of the learned counsel for the appellants-accused that conducting of test identification parade by the prosecution was based on the evidence of PWs.4 and 34. The said evidence is not convincing and it is not in accordance with law and the same is not reliable. Identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them at the time of commission of crime and to satisfy the investigating agency that the suspect is the real person whom the witnesses had seen in connection with the alleged offences. This proposition of law has been laid down by the Hon’ble Apex Court in the case of State of Maharashtra Vs. Suresh, reported in (2000)1 SCC 471, wherein at paragraphs-22 and 23 it has been observed as under:-
“22. If potholes were to be ferreted out from the proceedings of the Magistrates holding such parades possibly no test identification parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every test identification parade would become unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held (vide Bhudhsen v. State of U.P; Ramanathan v. State of T.N.) 23. When we scan through Ex.17 minutes of the test identification parade we feel that the safeguards adopted by PW.2 Executive Magistrate were quite sufficient for ensuring that the parade was conducted in a reasonably foolproof manner. We feel that the Division Bench niggled on unimportant details and came to the wrong conclusion that the test identification parade was irretrievably vitiated. The reasons by which the testimony of those three witnesses had been jettisoned by the Division Bench were fatuous and we cannot support them.”
17. Though in the present case, such method has not been adopted by PW.34-Tahsildar who conducted the test identification parade, in this behalf, the said evidence produced by the prosecution is not going to help in any manner to the case of the prosecution. But the said evidence is going to be considered for the purpose of proving the fact that though PW.4 was not knowing accused Nos.2 and 4 prior to the incident, he identified them in the said test identification parade and also before the Court. In that light, this evidence links accused Nos.2 and 4 to the alleged crime along with accused Nos.1 and 3. The contention taken up by the learned counsel for the appellants is not acceptable and the same is rejected.
18. The third circumstance on which the prosecution has relied upon is that of recovery of the articles at the instance of the accused. In this behalf, the prosecution has relied upon the evidence of the Investigating Officer-PW.33. He has deposed that on 24.2.2010, PW.32-Mirja Ali, PSI along with staff produced accused No.3- Pradeep and he recorded his voluntary statement as per Ex.P46. On the same day, the said staff also produced accused Nos.1 and 4. He also recorded their voluntary statements as per Exs.P47 and P48 respectively. In the voluntary statements they have volunteered to produce the incriminating articles and the articles which have been stolen by them. Thereafter, accused No.1 took the panch witnesses and PW.33 to Srinivagilu and from his house he produced blood stained T-shirt, one full shirt, watch, one Nokia mobile phone, one Sony Ericsson mobile phone and another mobile phone. The same were seized as per Ex.P17. On 26.2.2010 his staff produced accused No.2-Vivek @ Bikas and his voluntary statement was also recorded as per Ex.P51 and in his voluntary statement he volunteered that he will produce the knife which was used for commission of the offence and he will also show the place of murder of the deceased Amruth Roy and his wife Janaki. He also volunteered that he will produce ATM card, mobile phone and articles appear to be like silver and gold, clothes, debit card which was swiped by him in a mobile shop. He has further deposed that on 27.2.2010 accused No.2 after medical examination took the panch witnesses and PW.33 to Banashankari Ittumadugu, where he produced one jeans pant, T-shirt, one knife with wooden handle, Samsung mobile phone, Sony Ericsson mobile phone, Andhra Bank ATM card, Syndicate Bank card, SBI card of the deceased Janaki. He also produced the articles like silver and gold and three key chains. The same were seized by drawing a mahazar as per Ex.P40. The said articles have been marked as MO.Nos.40 to 46. He has further deposed that on 28.2.2010, accused No.2-Bikas took PW.33 and panch witnesses to Koramangala and there he took them to Phone World shop, where the owner of the shop produced debit card and told that the same was swiped by accused No.2-Bikas and he left the said debit card there itself. The same was seized by drawing a mahazar as per Ex.P37. He has further deposed that accused No.4-Preetham also gave his voluntary statement as per Ex.P48. He also lead the Investigating Officer and the panch witnesses near Agara tank and produced a knife, which was seized by the police. Thereafter, they were taken to Madiwal Market and by showing the said knife the owner of the shop also identified the knife which was purchased by the accused and marked as MO.No.12. They also took sample knife as per MO.No.13 and the same was seized by drawing a mahazar as per Ex.P36. He has further deposed that accused No.1-Santhosh also gave his voluntary statement and on the basis of the voluntary statement he took panch witnesses and Investigating Officer to his house and produced T-shirt and other articles. The said articles were seized as per Ex.P17. Since accused No.1 is not before this Court we feel that it is not just and proper at this juncture to go in detail with regard to the said evidence. PW.33 has further deposed that on 12.5.2010 the Proprietor of the Company where the deceased Amruth Roy was working came to the Police Station produced the warranty card in respect of Tommy Hill Ficker watch and the same was seized by PW.33 by drawing a mahazar as per Ex.P41 and the warranty card has been marked as Ex.P36. Thereafter, PW.33 went to World of Titan Show Room in Koramangala, where he showed the warranty card to the owner of the said Show Room. By looking to the said warranty card and on verifying the system entries, the owner of the Titan Show Room told that the said warranty card belongs to the deceased Amruth Roy and he has purchased the said watch and he has issued the receipt as per Ex.P35. The same was seized by drawing a mahazar as per Ex.P34. During the course of cross-examination nothing has been elicited so as to discard recovery portion of evidence of PW.33.
19. On going through the evidence of PW.33, the Investigating Officer and PWs.30 and 6, it clearly goes to show that MO.Nos.40 to 46 were recovered on the basis of the voluntary statement of accused No.2 as per Ex.P51 and the same were seized from the possession of accused No.2 by drawing a mahazar as per Ex.P40. MO.Nos.11 and 12 and stained articles have also been recovered from accused No.4 on the basis of the voluntary statement as per Ex.P48 by drawing a mahazar as per Ex.P6. As could be seen from the evidence of PWs.30 and 6, there is a corroboration with the evidence of the Investigating Officer-PW33.
20. Though during the course of arguments, it is submitted that the prosecution has not produced any documents to show that the said watch belongs to the deceased Amruth Roy and even the number of the watch found in warranty card and on the watch bill/invoice as per Ex.P35 are not tallying, it is not the case of the accused that they belong to them and have not made any claim over them. On perusal of Ex.P36 - warranty card and Ex.P35 – invoice, they bear similar number, i.e., TH1790665/D.Tommy 7495. In that light, the said contention is not acceptable. The accused have not made out any case or explanation as to how they were in possession of such articles. As could be seen from the ATM cards, debit cards, they stand in the name of the deceased and in the evidence of PW.9, they have identified them as that of the deceased Amruth Roy. When the prosecution has produced the said evidence, burden shifts upon the accused to disprove the same. If they fail to do so, the case of the prosecution stands proved.
21. Though there are some minor discrepancies in the evidence of the prosecution, they are considered to be inconsequential. It is well settled principle of law that if the evidence with regard to recovery is consistent and corroborates with other evidence, the only hypothesis which can be drawn is that of the guilt of the accused. Even as per Illustration (a) of Section 114 of the Evidence Act, recovery of the ornaments from the possession of the accused can lead to presumption of accused having committed robbery or receiving stolen property. Unless there are circumstances to show that theft or robbery and murder took place in the same transaction, then under such circumstances, the accused cannot be held liable for the offence punishable under Section 302 of IPC. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Raj Kumar Alias Raju Vs. State (NCT of Delhi) reported in (2017)11 SCC 160, wherein at paragraphs-13 and 14, it has been observed as under:-
“13. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time, i.e., in the course of the same transaction. No such evidence is forthcoming.
14. In view of what has been found above, we do not see as to how the charge against the appellant-accused under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the appellant- accused under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is upheld. As the appellant-accused, who is presently in custody, had already served the sentence awarded to him under Section 392 IPC, we direct that he be set at liberty forthwith.”
22. On going through the evidence and the aforesaid proposition of law, it would indicate that murder of Amruth Roy took place and within the short span of time his wife was also murdered. When it is the case of the prosecution that the accused persons were known to the deceased as well as to the witnesses and MO.No.23-watch, MO.No.24-China mobile, MO.No.25-Samsung mobile, MO.No.28-Nokia mobile, MO.29-Ericsson mobile, debit card and MO.Nos.43 to 45 ATM Cards and key chains belonging to the deceased Amruth Roy and Janaki have been recovered at the instance of accused Nos.2 and 4 and accused persons have also not made out any case of animosity against either the deceased or the witnesses and the evidence produced in this behalf regarding the recovery is worthy of credence and even the accused persons have not come with any explanation of incriminating circumstances. Under such circumstances, the only inference that can be drawn is that the accused persons in the same transaction caused the murder of the deceased Amruth Roy as well as his wife Janaki and committed robbery. It also substantiates the fact that because of making unlawful gain and with the said motive they caused the murder of the deceased and took away the said articles. When the recovery was effected only on the basis of disclosure made by the appellants-accused and in the absence of any explanation from the appellants- accused it can be concluded that the said evidence is consistent with regard to the guilt of the accused. This proposition of law has been laid by the Hon’ble Apex Court in the case of Ganga Bai Vs. State of Rajasthan, reported in (2016)15 SCC 645, wherein at paragraphs-8, 9 and 11, it has been observed as under:-
“8. It has come out in the evidence of PW 5 Shanti Devi, who is the wife of PW 6 Naresh Kumar, the landlord of the deceased-Sunanda and her husband- Ratanlal (son of the appellant), that accused Ganga Bai used to visit the deceased-Sunanda in her room. The said witness stated that she had seen Sunanda with the appellant before her disappearance. It has also come out in her evidence that the appellant, after the incident, came back to her, paid the rent and took away the belongings of the deceased. PW 6 Naresh Kumar has supported the version of PW 5. PW 7 is Sultana who has also stated that the deceased along with her children was seen with the appellant in the market and the deceased had told her that the appellant was taking them to Morvan. PW 8 husband of Sultana has supported her version. Thus, on the basis of the evidence of PWs 5 to 8, both the courts below have come to the conclusion that all the deceased were last seen with the appellant.
9. It has also come out from the evidence of PW 5 that the appellant was not happy with the deceased for two reasons viz. (i) she had already been married to another person and he had left her with her two children born to him and (ii) she belonged to a different caste. Therefore, if the appellant had accepted them in their family, they would have been cast out from the village. It is because of that only the deceased along with her family had left the appellant’s house and stayed in the rented accommodation provided by PW 5. It has also come out from her evidence that the deceased had given the phone number of paternal house and family photo of the deceased along with her husband and children to her to be handed over to her father in case she did not return. Yet another incriminating circumstance is the conduct of the appellant, after the incident, of settling the rent with PW 5 and removing the belongings of the deceased.
10. xxx xxx xxx 11. Having gone through the records, we find it difficult to be persuaded to take a different view on the evidence against the appellant which according to both the trial court and the High Court formed an unbroken chain which led only to one hypothesis viz. the involvement of the appellant in the offences under Section 302 and Section 201 IPC. It has to be specially noted that even under Section 313 IPC statement, the appellant did not have any explanation on the presence of human blood stains on her clothes which were duly recovered on her disclosure.”
23. Looking from any angle, we find that the recovery evidence produced before the Court along with other circumstances discussed above, is so strong which only points out to the guilt of accused Nos.2 and 4.
24. Though the recovery of MO.No.24 China Set Mobile was at the instance of accused No.3, the prosecution has utterly failed to prove that the said mobile phone of the deceased Amruth Roy has been recovered at the instance of accused No.3. There is no strong evidence as against accused No.3 as that of accused Nos.2 and 4. Under such circumstances, it cannot be held that the recovery has been established from the possession of accused No.3.
25. Though during the course of arguments, learned counsel appearing for the appellants submitted that the last seen theory has not been established by the prosecution, as could be seen from the evidence of PW.4, he has categorically deposed that he had been to the house of the deceased and accused Nos.3 and 1 used to visit the house of the deceased and when he was waiting for the bus in order to proceed to Rammurthy Nagar at that time accused Nos.1 to 4 alighted from the autorickshaw near the bus stop which is near to the house of the deceased and later he came to know that Amruteshwar and Janaki have been murdered by reading a newspaper. As discussed above, though the theory of last seen appears to be probable, with reference to recovery made at the instance of accused Nos.2 and 4 this circumstance of the fact that the accused persons were moving around the house of the deceased and saw on previous night of the alleged incident and immediately thereafter they have been murdered, it leads to presumption of accused having committed the robbery and murder in the same transaction. As held by the Hon’ble Apex Court in Ganga Bai’s Case (supra) a presumption can be drawn and accused can be held liable in this behalf.
26. It is not necessary that all the circumstances relied upon by the prosecution are to be established with cogent and acceptable evidence. But important chain of events which point out to the guilt of the accused and accused alone and if there is no second opinion or possibility, then under such circumstances, accused persons can be convicted in this behalf. In this case, even the FSL report given by PW.25 also corroborates to the facts and circumstances of the case. Though the Scientific Officer got examined 36 items belonging to the deceased and accused, on Item Nos.1 to 3, 5, 7, 10 to 14, 16, 18, 20 to 23, 25 to 34 were stained with ‘A’ group blood, there is no explanation from the accused as to under what circumstances the clothes of the accused were stained with blood belonging to that of the deceased. When there is no explanation given by the accused and over all circumstances establish the guilt of the accused and recovery was also effected at the instance of the accused, it also links to the above said circumstance.
27. Looking from any angle, there is sufficient, cogent and uncredible evidence as against accused Nos.2 and 4. In so far as accused No.3 is concerned, there is no such incriminating material so as to bring home the guilt of accused No.3. In that light, we pass the following order:-
Criminal Appeal No.184/2015 filed by accused No.3 – Pradeep Chathri @ Pradeepa is allowed. The judgment and order of conviction and sentence passed by the Fast Track Court-XIV, Bengaluru City in SC.758/2010, dated 16/17.9.2014 is set aside. Accused No.3 – Pradeep Chathri @ Pradeepa is acquitted of all the offences with which he was charged and he is set at liberty forth with if he is not required in any other case.
Criminal Appeal Nos.1354/2018 and 1485/2018 filed by accused Nos.4 and 2, namely Preetham Thamang @ Preetham and Vivek @ Bikas are dismissed being devoid of merits.
Sd/- JUDGE Sd/- JUDGE *ck/-