IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL REFERRED CASE NO.11 OF 2010 C/W CRIMINAL APPEAL NO. 713 OF 2011 C/W CRIMINAL APPEAL NO. 562 OF 2012 IN CRIMINAL REFERRED CASE NO.11 OF 2010 BETWEEN:
THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA BENGALURU-560001. ... PETITIONER (BY SRI: H N NILOGAL SPECIAL PP) AND:
1. VENKATESH @ CHANDRA S/O.VENKATASWAMY AGED ABOUT 36 YEARS, R/O.DINNUR COLONY, KADUGODI, BENGALURU RURAL DISTRICT.
2. MUNIKRISHNA @ KRISHNA S/O.VENKATASWAMY AGED ABOUT 29 YEARS, R/O.DINNUR COLONY, KADUGODI, BENGALURU RURAL DISTRICT.
3. NALLATHIMMA @ THIMMA S/O GURUBHOVI, AGED ABOUT 36 YRS R/O CHANNENAHALLI, MUTHUR POST PIRIYA PATNA TALUK, MYSORE DISTRICT DINNURE COLONY, KADUGODI BENGALURU RURAL.
4. LAKSHMAMMA @ LAKSHMI W/O DODDAHANUMA, AGED ABOUT 42 YRS R/O DANDUPALYA VILLAGE HOSAKOTE TALUK BENGALURU RURAL DISTRICT.
... RESPONDENTS (BY SRI: HASHMATH PASHA, ADVOCATE FOR R1 & R2, SRI: G.M.ANANDA, ADVOCATE FOR R3 & R4) THIS CRIMINAL REFERRED CASE IS REGISTERED AS REQUIRED UNDER SECTION 366(1) CR.P.C. FOR CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED 1) VENKATESHA @ CHANDRA, UTP NO.10175, 2) MUNIKRISHNA @ KRISHNA, UTP NO. 10178, 3) NALLA THIMMA, UTP NO.10177, 4) LAKSHMAMMA, UTP NO.10179, BY JUDGMENT DATED 30.8.2010/30.9.2010 PASSED IN S.C.NO.601 OF 2003 ON THE FILE OF THE XXXIV-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT), CENTRAL PRISON PREMISES, BENGALURU.
**** IN CRIMINAL APPEAL NO.713 OF 2011 BETWEEN:
1. VENKATESH @ CHANDRA S/O.VENKATASWAMY AGED ABOUT 36 YEARS, R/O.DINNUR COLONY, KADUGODI, BENGALURU RURAL DISTRICT.
2. MUNIKRISHNA @ KRISHNA S/O.VENKATASWAMY AGED ABOUT 29 YEARS, R/O.DINNUR COLONY, KADUGODI, BENGALURU RURAL DISTRICT.
(NOW BOTH ARE IN CENTRAL PRISON, BELGAUM) ... APPELLANTS (BY SRI: HASHMATH PASHA, ADVOCATE) AND:
STATE OF KARNATAKA BY KAMAKSHIPALYA POLICE STATION BENGALURU CITY.
(REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR). ... RESPONDENT (BY SRI: H N NILOGAL SPECIAL.PP) THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) CR.P.C BY THE ADVOCATE, FOR THE APPELLANTS PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED:30.08.10/30.09.10 PASSED BY THE XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (SPECIAL JUDGE), CENTRAL PRISON, PARAPPANA AGRAHARA, BANGALORE IN S.C.NO.601 OF 2003 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC. THE APPELLANTS/ACCUSED ARE SENTENCED TO DEATH. THEY SHALL BE HANGED BY NECK TILL THEY ARE DEAD FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC AND PAY A FINE OF RS.5,000/- EACH.
**** IN CRIMINAL APPEAL NO.562 OF 2012 BETWEEN:
1. NALLATHIMMA @ THIMMA S/O GURUBHOVI, AGED ABOUT 36 YRS R/O CHANNENAHALLI, MUTHUR POST PIRIYA PATNA TALUK, MYSORE DISTRICT DINNURE COLONY, KADUGODI BENGALURU RURAL.
2. LAKSHMAMMA @ LAKSHMI W/O DODDAHANUMA, AGED ABOUT 42 YRS R/O DANDUPALYA VILLAGE HOSAKOTE TALUK BENGALURU RURAL DISTRICT. ... APPELLANTS (By Sri: G M ANANDA, ADVOCATE) AND:
THE STATE OF KARNATAKA BY KAMAKSHI PALYA POLICE BENGALURU. ... RESPONDENT (By SRI: H.N.NILOGAL, SPECIAL PP) THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT DATED 30.8.2010 AND ORDER OF CONVICTION DATED 30.9.2010 PASSED BY THE XXXIV ADDITIONAL CITY CIVIL & SESSIONS JUDGE (SPECIAL COURT), CENTRAL PRISON COMPOUND, PARAPANA AGRAHARA, BANGALORE IN S.C. No.601 OF 2003 - CONVICTING THE APPELLANTS/ ACCUSED Nos.3 & 4 FOR OFFENCES PUNISHABLE UNDER SECTION 396 READ WITH SECTION 34 OF IPC.APPELLANT/ACCUSED-3 & 4 EACH ARE SENTENCED FOR DEATH. THEY BE HANGED BY NECK UNTIL DEATH SUBJECT TO CONFIRMATION OF THE HON'BLE HIGH COURT UNDER SECTION 366(1) OF CR.PC. AND ALSO TO PAY A FINE OF RS.5,000/- EACH FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC. THE APPELLANTS/ACCUSED-3 & 4 PRAY THAT THEY BE ACQUITTED.
***** THIS CRIMINAL REFERRED CASE AND CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 31.07.2017, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
J U D G M E N T This Criminal Referred case and the criminal appeals are arising out of the judgment dated 30.08.2010 and order of conviction dated 30.09.2010 passed by the XXXIV Additional City Civil & Sessions Judge (Special Court), Central Prison Compound, Parappana Agrahara, Bengaluru in S.C.No.601 of 2003 whereunder the appellants/accused Nos.1 to 4 are convicted for offences punishable under section 396 read with section 34 of Indian Penal Code and are sentenced to death penalty.
2. The case of the prosecution is that on 22.3.2000, in the afternoon, the appellants –accused Nos.1 to 4 herein along with accused Nos.6 and 7 and absconding accused No.5 gained illegal entry into the house bearing No.257, situated at Magadi Main Road, 1st Cross, 4th Stage, within the limits of Kamakshipalya Police Station on the pretext of asking for drinking water and caused the death of Smt.Sudhamani w/o. R.Vishwanathan (PW.13), aged about 42 years, by smothering and robbed four golden bangles and a mangalya chain from her person.
3. A complaint was lodged by the husband of the deceased Sri.R.Vishwanathan. Based on the said complaint, Crime No.126 of 2000 came to be registered against unknown persons under section 302 of Indian Penal Code. PW.6 – the Police Inspector of Kamakshipalya Police Station conducted the inquest over the dead body and drew up the spot mahazar. The dead body was forwarded for autopsy and it was ascertained that the death was due to asphyxia as a result of ligature strangulation.
4. On 31.01.2001, the Police Inspector of Vijayanagar Police Station (PW.16) having received credible information that the accused Doddahanuma and his companions had escaped from Chittoor prison, apprehended accused Nos.1 to 4 in the outskirts of Echanur village, Tiptur taluk, Tumakuru district. He arrested them and recorded their voluntary statements. Pursuant thereto, he recovered the gold ornaments belonging to the deceased at the instance of the aforesaid accused and having ascertained the involvement of the other accused as well in the commission of murder and dacoity, laid a charge-sheet against seven accused persons under section 396, 302 read with section 34 of Indian Penal Code. A split-up charge-sheet was filed against accused No.5. Accused Nos.1 to 4, 6 and 7 faced trial. The prosecution examined 16 witnesses as PW.1 to PW.16 and produced in evidence documentary evidence consisting of Ex.P1 to Ex.P20 and the material objects at MO.1 to MO.7.
5. On hearing the learned counsel for the accused and the learned Public Prosecutor, by the impugned judgment, the Trial Court convicted the appellants (accused Nos.1 to 4) under section 396 of Indian Penal Code and imposed the sentence of death. Accused Nos.6 and 7 were acquitted of the charge for lack of evidence.
6. Aggrieved by the same, Criminal Appeal No.713 of 2011 is filed by accused Nos.1 and 2, Criminal Appeal No.562 of 2012 is filed by accused Nos.3 and 4 and Criminal Referred Case No.11 of 2010 has been registered on the basis of the reference made by the Trial Court under section 366(1) of Criminal Procedure Code.
7. Learned counsel for the appellants has seriously assailed the impugned judgment of conviction and the sentence imposed by the court below contending that none of the ingredients of section 396 have been established by the prosecution. The prosecution has failed to adduce any evidence in proof of the ingredients of the offence of murder. None of the circumstance connecting the appellants – accused to the murder of the deceased has been proved with cogent and convincing evidence. The only witness who has spoken in support of the prosecution case is the panch witness to the recovery of jewellery said to have been recovered at the instance of accused Nos.1 and 3. The so-called voluntary disclosure made by the accused Nos.1 and 3 is not spoken to by the panch witness or by the Investigating Officer. As such, no evidentiary value could have been attached to the testimony of the panch witness to the recovery of gold ornaments. There is striking discrepancy in the description of the gold ornaments said to have been missing from the person of the deceased and the ornaments said to have been recovered during investigation. These ornaments are not suitably identified. Even if the recovery evidence is accepted, it would at the most make out an offence under section 411 of Indian Penal Code and would not establish the charge of murder unless there is some evidence to show that the robbery and the murder occurred at the same time. The said evidence is lacking. Therefore, the conviction recorded against the appellants under section 396 of Indian Penal Code is wholly illegal and perverse.
Therefore, the learned counsel for the appellants - accused has pleaded for acquittal of the accused.
8. Learned Special Public Prosecutor has argued in support of the impugned judgment and the order of sentence. He contends that the Trial Court has rightly convicted the accused. The findings recorded by the Trial Court are based on evidence. The evidence of the complainant and the relatives of the deceased indicate that the gold ornaments belonging to the deceased were missing since the time of commission of the offence. The said ornaments have been recovered at the instance of the accused and are duly identified as belonging to the deceased and therefore, there is no infirmity or illegality whatsoever in the conclusion arrived at by the Trial Court in holding the accused guilty of the offence of murder. Further the learned Special Public Prosecutor would submit that necessary materials are produced before the Trial Court to show that the accused were the members of a notorious gang who were facing trial in as many as 111 cases on the similar charges. The evidence on record indicates that the accused have been adopting similar modus operandi in identifying the houses occupied by lonely ladies and gaining entry therein on the pretext of asking for drinking water and thereafter committing their murder and robbing the valuables from the person or from the dwelling house. As on the date of passing the impugned judgment, the accused had suffered conviction in a large number of cases and under the said circumstances, the Trial Court was justified in awarding death sentence on the appellants and hence, he seeks for dismissal of the appeal and confirmation of the reference made by the Trial Court.
9. We have considered the above submissions and have examined the records.
9(a) PW.1 K.Sadashiva Bhatt is a relative of the deceased. He received the information of death from the husband of the deceased and thereafter went to the spot and saw the dead body.
9(b) PW.2 Theju is the owner of the house where the deceased was residing with her family on rent. He acted as a panch witness to the inquest mahazar Ex.P1. He further deposed that during February 2001, he was called to Vijayanagar Police Station and one Krishna took him and the police to his tenanted house and panchanama was drawn as per Ex.P2. Further in his examination, he identified accused No.1 as the person who showed the spot of occurrence.
9(c) PW.3 Santhosh Kumar is another panch witness to the mahazar Ex.P2. According to this witness, accused No.2 Munikrishna @ Krishna took the police and himself and the another panch witness to the spot of occurrence and a panchanama was drawn in this regard as per Ex.P2. He has been treated as hostile by the prosecution.
9(d) PW.4 K.H.Manjunath is the Medical Officer who conducted postmortem examination on the body of the deceased Sudhamani and gave his report as per Ex.P3 and opinion Ex.P4 certifying that the death was due to asphyxia as a result of ligature strangulation.
9(e) PW.5 Vedamurthachar was the Police Constable of Kamakshipalya Police Station at the relevant time. He carried two slides of vaginal swabs and two bottles of blood samples for FSL examination.
9(f) PW.6 A.Nagappa was the Police Inspector of Kamakshipalya Police Station at the relevant time. He took up further investigation from Sri.Venkatesh, Police Sub-Inspector, Kamakshipalya Police Station and conducted the inquest mahazar as per Ex.P1 and drew the spot mahazar as per Ex.P5 and seized MOs.1 to 4.
9(g) PW.7 H.Basavaraju was the Head Constable in Kamakshipalya Police Station at the relevant time who registered the F.I.R. based on the complaint -Ex.P6 lodged by the husband of the deceased. The F.I.R. is marked as Ex.P7.
9(h) PW.8 S.K.Mariswamy was working as Head Constable in Banaswadi Police Station at the relevant time. He accompanied the police officers to apprehend the accused.
9(i) PW.9 Venkatesh is examined as the receiver of golden articles from the accused. He is the owner of Ganapathi Jewellers Shop at Dharwad. He deposed that about three or four years prior to his examination, the police had come to his shop and had drawn a mahazar Ex.P8 and obtained his signature thereon. But he categorically denied having received any gold items from the accused. He has been treated as hostile by the prosecution.
9(j) PW.10 Manjunath is the owner of Bhagyalakshmi Jewellers at Dharwad. This witness has also failed to support the prosecution and has categorically denied having seized any articles from his shop. However he has admitted that his signature was obtained on the mahazar Ex.P10 in his shop.
9(k) PW.11 S.Babu is the panch witness for seizure of golden articles MO.5 Mangalya chain with engraved letters “SV”, MO.6 two bangles and MO.7 two golden bangles with “SV” letters. According to this witness, on 3.2.2001, the Vijayanagar Police Station took him along with accused Nos.1 to 3 and 6 to Hubballi at about 12.30 p.m. Accused No.1 took them to Bhagyalakshmi Jewellers Shop. The police enquired with the shop owner and admitted that he had received the golden articles from accused No.1, produced nine gold ornaments to the police and a mahazar was drawn in this regard as Ex.P10. Thereafter, the accused No.2 led them to Ganapathi Jewellers Shop in Dharwad city. The owner of the shop admitted the transaction and delivered those gold articles which were seized under the mahazar Ex.P8. Further this witness deposes that on 5.2.2001 between 10.00 a.m. and 11.00 a.m., accused No.3 took them to Bhagyalakshmi Jewellers. At the instance of accused No.3, the shop owner delivered eight gold items. They were seized under mahazar Ex.P11. On 4.2.2001, the accused Dodda Hanuma led the police team and the panch witnesses to Ganapathy Jewellers Shop and at the instance of the said accused, the owner produced a single earstud and two pairs of gold bangles and a mahazar was drawn in this regard in the shop. Later accused No.2 Munikrishna @ Krishna led them to Bhagyalakshmi Jewellers Shop and owner of the said shop produced six gold items. Later accused No.6 Venkatesha led them to Ganapathi Jewellers Shop situated at Shivaji Road, Dharwad and four bangles and a chain were recovered. Thereafter, on 5.2.2001, accused No.3 namely Nallathimma led them to Ganapathi Jewellers Shop at Dharwad and told before the owner that he had sold the articles to the owner of the said shop. The owner of the said shop returned gold bangles, chains to the police, thereafter the accused No.3 asked the owner to return two more gold bangles. The owner replied that he had melted them and converted into an ingot and produced one golden ingot. All these articles were seized and a mahazar was drawn. During his evidence, he identified MO.5 to 7. This witness was also treated as hostile and during his cross- examination by the learned Public Prosecutor it is elicited that accused No.1 led them to Bhagyalakshmi Jewellers situated at Shivaji Road, Dharwad on 4.2.2001 and MO.5 was seized from the said shop under Ex.P10. He also admitted the suggestion that on 5.2.2001, the accused No.3 led them to Bhagyalakshmi Jewellers Shop at Dharwad and one Manjunath Palankar – owner of Bhagyalakshmi Jewellers had produced the gold articles.
9(l) PW.12 Seshadri.K. is the Investigating Officer who laid the charge-sheet against the accused.
9(m) PW.13 R.Vishwanathan is the husband of the deceased. He has spoken about the complaint lodged by him at Ex.P6 and has identified the gold ornaments MOs.5, 6 and 7 as belonging to the deceased. He is also a panch witness to the spot mahazar Ex.P5. In the cross-examination, he denied the suggestion that he did not mention in Ex.P6 that four gold bangles and a gold mangalya chain were missing from the body of his wife. He volunteered to state that for two days, the Kamakshipalya Police had kept him in custody and assaulted him on the ground that he himself had murdered his wife.
9(n) PW.14 H.Basavarajaiah was the Police Constable who took the dead body for postmortem examination and after autopsy, produced the clothes found on the dead body namely MOs.1 to 4 before the Investigating Officer.
9(o) PW.15 Venkatesh is the panch witness for the spot mahazar Ex.P5. He has been treated as hostile by the prosecution and nothing has been brought out in his cross- examination to show his participation in the preparation of Ex.P5.
9(p) PW.16 N.Chalapathy is the main Investigating Officer who secured the accused and seized the gold articles at their instance. According to this witness, he was the Police Inspector in Vijayanagar Police Station from 10.7.2000 to 5.8.2001 and from 11.3.2002 to 8.5.2003. A case was registered in Vijayanagar Police Station Crime No.674 of 1999 under section 302 of Indian Penal Code. While he was the Police Inspector at Banaswadi Police Station, he arrested the accused Doddahanuma and others in Crime No.353 of 1999. He received information from CB-CID, Chittoor that the said Doddahanuma, Chinnappa and Ventakarama and other accused escaped from Chittoor prison. On received this information, on 31.1.2001, he went to Echanur village in Tiptur Taluk along with his personnel and apprehended accused Nos.1 to 4 of this case and on interrogation, recorded their voluntary statements. According to this witness, on 3.2.2001, accused No.2 Munikrishna @ Krishna showed the spot of murder in this case and a mahazar in this regard was drawn as per Ex.P2. Based on the voluntary statements of accused Nos.1 to 3, he seized the gold articles from the shop of PW.9 and PW.10 under mahazars Ex.P8, Ex.P10 and Ex.P11 respectively. Through this witness, the prosecution has marked admissible portion of voluntary statements of accused Nos.1 to 3 as per Ex.P15, Ex.P16 and Ex.P17.
10. From the above material, it is clear that the entire case of the prosecution is based on a solitary circumstance namely the recovery of gold ornaments belonging to the deceased at the instance of accused Nos.1, 2 and 3. But as it is contended that the evidence adduced by the prosecution in proof of this circumstance is unacceptable and the said evidence does not satisfy the standard of proof required in a criminal case and that the properties alleged to have been recovered are not identified as that of the deceased, we have carefully scrutinized the evidence of the complainant and the relatives of the deceased as well as the witnesses examined by the prosecution in proof of the recovery of the gold ornaments MOs.5, 6 and 7. A perusal of the complaint Ex.P6 and the F.I.R. indicates that at the earliest instance, the husband of the deceased namely the complainant has specifically stated that on entering the house, he found the deceased lying dead in a pool of blood with bleeding injuries. He has specifically stated that the gold earrings and a chain and a finger ring were found on the body. When he checked the wardrobe, ornaments and cash therein were found intact, but the bangles and another chain which were worn by the deceased on the date of the incident were missing. In his evidence, PW.13 – the husband of the deceased has identified MOs.5, 6 and 7 as the chain and four bangles worn by the deceased on the date of the incident. The identification made by PW.13 has not been challenged in the cross- examination except suggesting that in Ex.P6, PW.13 did not mention the number of bangles missing from the person of the deceased. No other circumstances are brought out to suggest that the said ornaments were not worn by the deceased on the date of the incident or that they did not belong to her. The other relatives examined by the prosecution have also identified that these ornaments as belonging to the deceased. Therefore, the objection raised on behalf of the accused with regard to the identity of the gold ornaments cannot be accepted.
11. In so far as the recovery of these gold ornaments namely MOs.5, 6 and 7 is concerned, the prosecution has relied on the evidence of the receivers namely PW.9, PW.10 as well as the panch witness namely and PW.11 who attested the recovery panchanamas. As already stated above, the receivers namely PW.9 and PW.10 have wholly turned hostile to the prosecution, but PW.11 has deposed in support of the prosecution. Though his evidence is not accurate with regard to the identification of the accused but in his further evidence he has correctly identified the respective accused and has stood by the fact that in his presence, at the instance of accused Nos.1, 2 and 3, the gold ornaments namely MOs.5, 6 and 7 were recovered from the shops of PW.9 and PW.10. Even assuming for the sake of argument that the testimony of PW.11 suffers from any ambiguity, yet in accepting the evidence in proof of the recovery, in our opinion, even the testimony of the Investigating Officer, if found reliable, could be accepted without requiring any corroboration thereto. In this regard, an useful reference could be made to the proposition enunciated by the Hon’ble Supreme court in STATE GOVERNMENT OF NCT OF DELHI vs. SUNIL & Another, 2001(1) Crimes 176, wherein at para 19, it is held as under:
“19. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.”
(underlining supplied) 12. In the instant case, a perusal of the evidence of PW.16 – the Investigating Officer who effected the recoveries would disclose that he recorded the voluntary statements of the respective accused and secured the panch witnesses for the purpose of recovery. In his evidence, PW.16 has specifically stated that on 4.2.2001, accused No.1 led him and the panchas to the shop by name Bhagyalakshmi Jewellers and the accused No.1 identified the owner and told the owner that he had sold some jewels to him and at his instance, the owner produced ten items and they were seized under mahazar Ex.P10. The Investigating Officer has identified MO.5 as pertaining to the case in hand. Likewise, he has stated that on the same day, accused No.2 led him and the panchas to Ganapathi Jewellers and the accused told the owner of the shop that he had sold some eight jewellery articles and at his instance, the owner produced eight items and they were seized under the mahazar Ex.P8. He has identified MO.6 as relating to the case in hand. The Investigating Officer has further stated that on 5.2.2001, accused No.3 led them to Bhagyalakshmi Jewellers and the accused told the owner of the shop that he had sold some jewellery articles to him and at his instance, the owner produced seven items of jewellery articles which were seized under Ex.P11. He has identified the article pertaining to the deceased as MO.7. This evidence, in our opinion, satisfies all the legal requirements in proof of the recovery. The admissible portion of the voluntary statements of accused Nos.1 to 3 has been marked through this witness as Ex.P15, Ex.P16 and Ex.P17 respectively. PW.16 has narrated about the contents of the voluntary disclosures made by the respective accused leading to the recovery. Even though PW.16 is subjected to a lengthy cross-examination, no circumstances have been brought out to show that the articles recovered under Ex.P10, Ex.P8 and Ex.P11 are either planted or that they were not seized as depicted in the respective mahazars. In our opinion, the evidence of PW.16 itself is sufficient to prove the recovery relied on by the prosecution. The Trial Court has also believed the testimony of this witness and has recorded a finding in this regard which, in our opinion, does not call for any interference. Therefore, the argument of the learned counsel for the appellants - accused that the prosecution has failed to prove the recovery of the gold ornaments at the instance of the respective accused Nos.1, 2 and 3 and the identification thereof as belonging to the deceased is liable to be rejected.
13. Having come to the above conclusion, the crucial question that remains for determination is whether on the basis of the above circumstance can it be inferred that accused were instrumental in the murder of the deceased? Admittedly the accused were charged for the offence under section 396 of Indian Penal Code. Murder is an integral part of the offence under section 396 of Indian Penal Code. But in the instant case, the only circumstance proved against the accused Nos.1, 2 and 3 is the recovery of gold ornaments belonging to the deceased. In addition to this circumstance, the Trial Court however has relied on the voluntary statements attributed to the accused at Exhibits P.15, P.16 and P.17 and has come to the conclusion that these two circumstances render the accused guilty of the offences under section 396 of Indian Penal Code. We are unable to concur with the reasoning and the finding of the Trial Court in this regard. In our opinion, the circumstance of unexplained recovery of gold ornaments belonging to the deceased, in view of illustration (a) to section 114 of the Evidence Act may at the most give rise to an inference that they were either receivers of stolen property or were the person who committed the theft, but it does lead to the conclusion that the theft and the murder had taken place one at the same time. This view has been authoritatively laid down by the Hon’ble Supreme Court as back as in 1956 the case of SANWAT KHAN & Another vs. STATE OF RAJASTHAN, AIR 1956 SC 54. In the said case also, there was no direct evidence whatsoever in proving the participation of the accused in the murder for which the accused were charged. Learned Sessions Judge in convicting the accused therein under section 302 Indian Penal Code, took into consideration the circumstances of the recovery of a gold kanthi and tashak at the instance of accused and the fact that the accused were seen near the place of occurrence on the day previous to the murder. While setting aside the conviction recorded by the learned Sessions Court, the Hon’ble Supreme Court has held as under:
“In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.”
In the said case, the accused were held guilty of the offence under section 380 Indian Penal Code.
14. Similar, if not identical, situation was considered by the Hon’ble Supreme Court in a recent case in RAJ KUMAR alias RAJU vs. STATE (NCT of Delhi), AIR 2017 SC 614 and the Hon’ble Supreme Court following the decision in AIR 1956 SC 54 has observed as under:
12. 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.
Further the Hon’ble Supreme Court has held that, “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 accused under Section 392 IPC is well-founded.”
15. The case in hand bear striking resemblance to the above two cases. Except the proof of recovery of MOs.5, 6 and 7 at the instance of accused Nos.1, 2 and 3, no other evidence is produced by the prosecution to show that robbery and the murder occurred at the same time. Therefore, the conviction of the accused under section 396 cannot be sustained.
16. In so far as accused No.4 is concerned, there is no evidence even with regard to the recovery of gold ornaments belonging to the deceased from his possession. Therefore, accused No.4 is entitled to be acquitted outright.
17. In the cases discussed above, in addition to the recovery evidence, the prosecution had relied on the evidence relating to the accused last seen near about the house of the deceased. In spite of it, in the absence of any reliable evidence in proof of the murder, the Hon’ble Supreme Court found it proper not to draw any inference attracting the offence of murder.
18. In the instant case, the situation is still worse. The Trial Court has recorded conviction for the offence under section 396 of Indian Penal Code based on the voluntary statements of the accused and the recovery of gold ornaments. It is trite law that no conviction would lie on the basis of the voluntary statements recorded by the police officers while the accused were in their custody. Section 25 of the Evidence Act in unmistakable terms provides that no confession made to a police officer is relevant or shall be proved against a person accused of any offence. Section 26 mandates that no confession by any person while he is in custody of a police officer shall be relevant or proved against him. It is unfortunate that the learned Sessions Judge has placed reliance on Exhibits P15, P16 and P17 namely the voluntary statements of the accused to base the conviction. Therefore, on overall consideration of the above facts and circumstances of the case, we are of the view that the conviction recorded against the accused under section 396 of Indian Penal Code cannot be sustained.
19. However, taking into account the proof of recovery of gold ornaments at the instance of accused Nos.1, 2 and 3, we are of the view that accused Nos.1, 2 and 3 are liable to be convicted for the offence punishable under section 392 of Indian Penal Code and accordingly, they are convicted for the offence punishable under section 392 of Indian Penal Code. Having regard to the background of the accused as spoken to by PW.16 and especially in view of the fact that accused are alleged to have been involved in similar offences, we deem it appropriate to sentence accused Nos.1, 2 and 3 for rigorous imprisonment for a period of ten years and a fine of Rs.10,000/- each.
20. In view of the above conclusion, the sentence of death awarded by the Trial Court cannot be sustained and the same is hereby set-aside and in modification of the sentence awarded by the Trial Court, the accused Nos.1, 2 and 3 are sentenced to rigorous imprisonment for a period of ten years and a fine of Rs.10,000/- each. In default to pay the fine amount, each of the accused shall undergo further rigorous imprisonment for a period of one year. The accused No.4 is acquitted of the charge under section 396 of Indian Penal Code.
ORDER Crl.RC.No.11 of 2010 is rejected in the aforesaid terms.
Crl.A.No.713 of 2011 and Crl.A.No.562 of 2012 are partly allowed. The conviction of the accused Nos.1, 2 and 3 for the offence under section 396 read with section 34 of Indian Penal Code is set-aside and in modification thereof, the accused No.1 - Venkatesha @ Chandra, accused No.2 – Munikrishna @ Krishna and accused No.3 – Nalla Thimma @ Thimma are convicted for the offence punishable under section 392 of Indian Penal Code and are sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.10,000/- each and in default to pay the fine amount, each of the accused shall undergo further rigorous imprisonment for a period of one year.
The accused Nos.1, 2 and 3 are entitled for the benefit of set-off for the period of detention they have already undergone in this case as per section 428 of Criminal Procedure Code. If the accused have already served the substantive period of sentence, they shall be set at large in this case, if not required in any other case.
Accused No.4 –Lakshmamma @ Lakshmi is acquitted of the charge under section 396 of Indian Penal Code.
The Registry is directed to communicate the operative portion of the order to the Jail Authorities, Hindalga Jail, Belagavi where the accused are lodged.
SD/- SD/-
JUDGE JUDGE Bss.