IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 PRESENT THE HON'BLE MR. JUSTICE K.N.PHANEENDRA AND THE HON'BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.1690/2016 (C) C/W CRIMINAL APPEAL No.771/2015 (C) IN CRL.A.NO.1690/2016 BETWEEN:
SADASHIVA @ SADA AGED ABOUT 26 YEARS S/O BASAVARAJAPPA R/AT KABIRANANDA NAGARA AGALU ARI, CHITRADURGA DIST.
CHITRADURGA – 577 501 ... APPELLANT (BY SRI PAVAN KUMAR G, ADV. FOR SRI MOHAN KUMAR D, ADV.) AND STATE OF KARNATAKA BY CHITRADURGA RURAL POLICE REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE – 560 001 ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL SPP.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 5.8.2014/6.8.2014 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN S.C.NO.86/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 AND 382 R/W 34 OF IPC.
******* IN CRL.A.NO.771/2015 BETWEEN N. GIRI @ GIRISH S/O LATE NAGARAJAPPA AGED ABOUT 22 YEARS OCC: DRIVER R/O GODABANAHAL VILLAGE CHITRADURGA TALUKA AND DISTRICT – 577 501 ... APPELLANT (BY SRI. DINESHKUMAR K RAO, ADV.) AND THE STATE OF KARNATAKA BY CHITRADURGA RURAL POLICE STATION – 577 501 ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL SPP.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE DATED 5.8.2014/6.8.2014 PASSED BY THE PRINCIPAL DISTRICT & SESSIONS JUDGE, CHITRADURGA, IN S.C.NO.86/2012-CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 382 R/W 34 OF IPC ETC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING, THIS DAY, K.N.PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant in Criminal Appeal No.771/15 and appellant in Criminal Appeal No.1690/16 respectively arraigned as accused nos.1 and 2 before the trial Court in SC No.86/12 on the file of Prl. District and Sessions Judge, Chitradurga, have called in question the said Judgment of conviction and sentence on various grounds before this Court.
2. The trial Court has convicted the appellants for the offence under Section 302 of IPC and sentenced them to undergo imprisonment for life and shall pay a fine of Rs.10,000/- each and in default to pay the fine amount, sentence of imprisonment for three years. They were also convicted and sentenced for the offence under Section 382 read with Section 34 IPC to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs.5,000/- each and in default to pay the fine amount, sentenced to undergo simple imprisonment for two years.
3. Being aggrieved by the abovesaid Judgment and sentence, the appellants are before this Court.
4. We have heard the arguments of the learned counsel for the appellants and also the Additional State Public Prosecutor (Addl.SPP) for State, in detail.
5. We have carefully examined and re- appreciated the oral and documentary evidence adduced and produced before the trial Court by the prosecution and also the Judgment of the trial Court. Before adverting to the grounds urged before this Court by the learned counsel for the appellants, we feel it just and necessary to have the brief factual matrix of this case.
6. The prosecution case unfolds that, a person by name Harish S/o.Chandrappa who is no other than the brother’s son of the deceased Nanjundappa lodged a report/information as per Ex.P1 stating that they have got an areca garden in their village called Bettadanagenahalli, Chitradurga Taluk. On 20.1.2012, his paternal uncle (father’s elder brother) by name Nanjundappa had been to the garden land at 5 p.m., he did not return up to 7.00 p.m. suspecting that something might have happened to him, Mr. Harish went to the garden land and saw Nanjundappa with bleeding injuries on his body. He was not in talking condition. Mr. Nanjundappa had sustained injuries on his right hand, left hand, head etc. Mr. Harish suspected one Mara alias Marappa might have done that illegal act since the said person was recently released from jail. Therefore, suspecting him, he lodged a complaint after shifting the victim to the Hospital. The Police have registered a case initially on the basis of the above said Ex.P.1 in Crime No.26/12 for the offence under Section 307 of Indian Penal Code (`IPC’ for short). Subsequently, it appears on the same day, the victim succumbed to the injuries & as such, after receiving the information, the Police have converted the case for the offence under Section 302 of IPC and also under Section 382 of IPC and thereafter, they proceeded with the investigation. After thorough investigation, the Police have laid the charge sheet against accused nos.1 and 2 (appellants herein) for the above said offences. The accused were also apprehended on 27.1.2012 and since then they have been in judicial custody. After committal proceedings, the trial Court secured the presence of the accused and framed charges against them for the offence punishable under Sections 302 and 382 read with Section 34 of IPC and they were put on trial.
7. The prosecution in order to bring home the guilt of the accused, examined as many as 28 witnesses as PWs.1 to 28 and got marked Exs.P.1 to P.42 and Material Objects MOs.1 to 24.
8. The accused were also examined under Section 313 of the Criminal Procedure Code, 1973 (in short `Cr.P.C’) and their statements were also recorded. As the accused did not choose to lead any defense evidence, after hearing both the sides, the trial Court has arrived at a conclusion that the prosecution has proved the case against the accused beyond reasonable doubt and therefore, rendered the impugned Judgment and sentence.
9. The learned counsel for the appellants have strenuously contended before this Court that the prosecution case though revolves around three important circumstances i.e., homicidal death of the deceased, identification of the accused and as well as recovery. The learned counsel has argued that the prosecution has not proved the identification of the accused beyond all reasonable doubts. The evidence of PWs.6, 12 and 13 in this regard is very shaky as no identification parade was done as to whether they were actually shown to these witnesses in the Police Station. Therefore, their identity either before the Tahsildar during test identification parade or before the Court becomes erroneous and such identification cannot be believed. They also contended that there is an allegation with regard to recovery of gold rings MOs.1 and 2 at the instance of the accused No.1 and MO.3 gold ring at the instance of accused No.2. The witnesses PW.16 and PW.17 have not fully supported the case of the prosecution. Their evidence is not trustworthy for credence as recovery has not been established beyond reasonable doubt.
10. They have further submitted that the witnesses PWs.6, 12 and 13 have identified the clothes which were recovered at the instance of accused No.2 only but, there is no explanation as to how it can be depicted or attributed so far as accused No.1 is concerned. There is total inconsistency with regard to recovery of these articles at the instance of the accused.
11. It is further submitted by the learned counsel that, recovery of chopper at the instance of accused No.1 is falsified for the simple reason that the evidence of PW.1-Harish witness has stated before the Court in the examination-in-chief that the chopper (MO.15) was seized from the spot itself. Therefore, seizure of MO.15 chopper at the instance of accused No.1 under Ex.P.19 is also falsified. The evidence of the Doctor as per PW.20 and mere marking of document Ex.P.42 - FSL report is not sufficient to bring home the guilt of the accused. Prosecution has not explained through examination of Dr. Lingegowda PW.28 to arrive at a conclusion that the articles seen by him were all containing B-group blood. Blood group of the accused have not been tested with that of the blood group of deceased so as to prove beyond reasonable doubt that blood stains on the alleged clothes of the accused did not belong to the blood group of the deceased.
12. Last but not the least, in the alternative, learned counsel also submitted that even for any reason if we believe the recovery of incriminating articles i.e. gold rings MOs.1 to 3 at the instance of the accused, at the most, it may fall under Section 379 of IPC. Therefore, the allegations made against the accused that they have committed the murder of the deceased is not proved beyond reasonable doubt.
Therefore, the appellants are entitled for benefit of doubt.
13. Per contra, the learned Addl.SPP appearing on behalf of the State has submitted before the Court that though it is not stated in the FIR which cannot be an encyclopedia with regard to missing of three rings on the body of the deceased at that point of time, even before arrest of the accused, rings were recovered and brought before the Investigating Officer and submitted before the Court and as such with regard to recovery of those rings and later recovery at the instance of accused Nos.1 and 2, there is absolutely no cross-examination. So far as this aspect is concerned, as the witnesses PWs.1 to 4 and PW.8 have categorically stated about the existence of those rings in the hands of the deceased on that particular day and they were missing when they saw the dead body of the deceased. The learned Addl.SPP also vehemently argued that the evidence of the prosecution witnesses particularly with reference to the recovery of those articles i.e. rings, PWs.25, 19 and 26 are all material witnesses. They have supported the case of the prosecution. There is not even a single suggestion made to these witnesses as to why they have to falsely implicate the accused persons or to suspect these witnesses. There is no suggestion to the Investigating Officer as to what interest he has got to falsely implicate the accused persons.
14. The learned Additional State Public Prosecutor submits that the bloodstains on the clothes of the accused were tallied with the blood group of deceased. This particular aspect is not explained by the accused as to how their clothes were stained with blood particularly when it was tallied with the blood group of deceased and they have also not even suggested to any of the prosecution witnesses, particularly the Investigating Officer, about their blood group. Therefore, mere non-examination of blood group of the accused cannot said to be fatal to the case of the prosecution.
15. Learned Additional State Public Prosecutor also strenuously argued that chopper which was recovered under Ex.P15 Mahazar was shown to the witnesses PWs.18, 25 and 27. They have stated in their evidence with regard to chopper which was shown to the Police by the accused. The accused have shown the chopper to the Police and these witnesses where they hid the chopper when the above witnesses went along with the Police. The chopper was kept in a secret place in the land of one Obanna in the bush though it was not seen at the spot of incident. Though there is a strange statement by PW.11 that one chopper and other articles were seized but, he does not remember what are all the articles, not corroborated with any material on record, such a sole strange statement of PW.11 cannot be taken serious note of. Lastly, the learned Additional State Public Prosecutor contended that delay in conducting identification parade by the prosecution is not actually at the instance of the Investigating Officer. He has made a request on 18.2.2012 itself but, on 30.3.2012 Test Identification Parade was conducted. There should not be such delay in conducting the identification parade. Therefore, for the abovesaid reasons, the learned Addl.SPP contended that the trial Court has considered all the factual aspects and legal aspects and came to the conclusion that the prosecution has proved the case beyond all reasonable doubt. There is no room for this Court to interfere with the Judgment of conviction and sentence passed by the trial Court.
16. In the wake of the above said submissions made, before adverting to the material evidence on record, we would like to have a cursory look at the evidence of the prosecution witnesses. As rightly argued by learned counsel for both the appellants, PWs.1 to 5 are the formal witnesses. They have not influenced the case of the prosecution in any manner. They are the witnesses who have gone to the spot after receiving the information about the dead body lying in the land of deceased Nanjundappa, they have actually visited the spot and also seen the injuries on the dead body of the deceased Nanjundappa and thereafter, they have stated Nanjundappa was wearing the gold rings and he used to wear such rings everyday when he used to go to the garden land. They have also stated that the deceased Nanjundappa was shifted to S.S.Hospital, Davanagere at about 1.30 night, where he succumbed to the injuries sustained by him. Thereafter, it appears that PW.8 who is no other than the brother’s son of the deceased has informed the Police about the death of the deceased and the Police have collected the information and registered the FIR for the offence against accused persons punishable under Section 302 of IPC as noted above.
17. PW.6-N.C.Thippeswamy, PW.12-G.Mahesh and PW.13-R.Thippeswamy are the witnesses who have been examined before the Court to establish the scene after the incident. The accused nos.1 and 2 were seen by these witnesses going on their motorcycle from Bheemasamudra road towards Hullur. One Girish was wearing red T-shirt and brown coloured pant and the other person was wearing checks shirt and light cream coloured jeans pant towards garden land to commit the alleged incident.
We would discuss the evidence of these witnesses little later.
(i) PW.7-N.Chidanandappa is the son of deceased Nanjundappa and he also in fact reiterated what PWs.1 to 4 have stated from the day the deceased Nanjundappa had been to the garden land and he also saw the gold rings. He also stated before the Court that he received the gold rings for his interim custody before the Court. He identified them as MOs.1 to 3 marked before the Court. He also reiterated death of deceased at 1.30 a.m in the night. Though these witnesses including PW.8 were subjected to cross-examination, we find that there is no cross-examination with reference to these golden rings which were worn by deceased Nanjundappa when he had been to the garden land wearing these golden rings in his hands or wearing even in the house. Cross-examination of these witnesses PW.7 who is son of deceased and PW.8 who is son of another brother of deceased who have taken the gold rings to their custody and there is no cross- examination with regard to their eligibility or entitlement to receive these golden rings. It is also worth to refer to the evidence of these witnesses and cross-examination of these witnesses denying the statement that they have never claimed these golden rings belonged to deceased Nanjundappa in any manner.
(ii) PW.9-A.Govardhan, is the witness, who is goldsmith whom the prosecution examined to establish the recovery of golden ring MO.1 at the instance of accused no.1. He has stated, the ring weighing about 7 grams was given by accused no.1 stating that his mother is ill and money is required for that purpose. He has stated that he has paid Rs.7,000/- to the accused for the ring which accused no.1 pledged in his shop.
iii) PW.10-Halesh is the inquest witness and he is also witness to the seizure of cloth of deceased i.e. one underwear under Mahazar Ex.P.4. There is no such cross-examination so far as this witness is concerned. Particularly so far as these two Mahazar Exs.P3 and P4 are concerned, it is only in casual manner suggested that deceased is no other than the uncle of this witness. He has denied the suggestion that he is deposing falsely before the Court. In fact, this witness has not stated against the accused in any manner or produced incriminating material against the accused. He simply stated that Police have conducted the inquest and also seizure of cloth worn by the deceased which no way corroborates as to who were the accused persons. Here itself we say that there is no dispute by the accused with regard to the death of the deceased. They did not know how the death of deceased occurred. Therefore, inquest proceedings and as well as evidence of PW.20 Dr. Nagesh Kuppasth-Asst. Professor in FSL, Davanagere who has stated that he conducted the Post Mortem examination on the dead body of the deceased- Nanjundappa of Bettadanagenahalli, Chitradurga Taluk and also he examined MO.15 the Chopper recovered in this case. As per the PM report which is marked at Ex.P21, he has stated that after conducting the PM examination, he found many grievous injuries on the dead body and death was due to cumulative effect of the injuries over the head and other parts of the body. Though some cross-examination has been adverted to but so far as the death of deceased is concerned, there is absolutely no suggestion during the course of cross-examination of this witness that the said injuries could be self-inflicted injuries and in the absence of intervention of any third party, such injuries could not have been caused on the dead body of the deceased. Therefore, when the death of the deceased occurred in a peculiar circumstance in this case particularly due to the injuries sustained by him, we have no hesitation to hold that the prosecution has proved the case so far as homicidal death of the deceased. There is no necessity for this Court to discuss the evidence of these witnesses on this aspect.
(iv) PW.11-Prabhakar is also another witness to Ex.P5 spot Mahazar, wherein he has stated that the Police have seized MO.15 Chopper at the spot. Much has been argued so far as this witness is concerned. But, we would like to discuss the evidence of this witness little later.
(v) PW.14-Rudreshappa is also another Panch witness for seizure of MO.9 nicker (underwear) of the deceased under Ex.P4. Ex.P3 is the Inquest Mahazar.
(vi) PW.15-Anand is another Panch witness to Ex.P5 Spot Mahazar who has stated about the seizure of some articles as informed by the Police at the time of conducting Panchanama.
(vii) PW.16-Mallikarjun is a witness to Ex.P17 under which the Police have seized some articles from the accused nos.1 and 2 and also an autorikshaw are shown. This witness has also not supported the case of the prosecution and he was cross-examined by the prosecution.
(viii) PW.17 another Panch witness to Ex.P.16 seizure mahazar who has supported the case of the prosecution but, to some extent he also turned hostile during the course of cross-examination.
We also discuss this while dealing with recovery of incriminating articles at the instance of accused.
(ix) PW.18-Lokeshappa is another Panch witness to Ex.P19 seizure mahazar under which a Chopper MO.15 was recovered at the instance of accused no.1 and also the Police conducted Spot Mahazar as per Ex.P8 after arrest of the accused persons and collected some material like burnt clothes of the deceased on the spot.
(x) PW.19-A.Somashekhar is another witness to Ex.P2 under which a ring was recovered at the instance of accused no.1 marked at MO.1 and also he is a witness to the recovery of blood stained cloth at the instance of accused No.2 which are marked as MOs.5 to 8 red T-shirt of accused No.1, blue jeans pant of accused No.1, shirt of accused No.2, jeans pant of accused No.2 under Mahazar Ex.P20.
(xi) PW.21-Mr. Kotresh is a Village Accountant who gave RTC extract on request in respect of Sy.No.269/1 situated at Hullur village, Hireguntanuru Hobli which belonged to deceased B.Nanjundappa bin Basavappa.
(xx) PW.22-Sri Kumaraswamy is the Tahsildar of Chitradurga Taluk who conducted the test identification parade of accused Nos.1 and 2.
(xxi) PW.23-Ramappa C., Police Constable is the person who carried the FIR to the jurisdictional Magistrate. FIR is marked as Ex.P27.
(xxii) PW.24-Sri Sathyanarayana Reddy, ASI, Chitradurga is the person who registered the case on the basis of Ex.P.1 a report, received from one Mr.Harish S/o.Chandrappa and registered a case in Crime No.26/12 initially for the offence under Section 307 of IPC and dispatched the FIR Ex.P.27 to the Court in respect of death of deceased on 21.01.2012 at 1.30 a.m. Thereafter, he handed over the investigation to PSI.
(xxiii) PWs.25-Sri Shivanna, PC and PW.26-Sri S.Balachandranayak, PSI are the persons who apprehended the accused Nos.1 and 2 and conducted some investigation after apprehending the accused. Thereafter handed over the investigation to PW.27.
(xxiv) PW.27-Sri Rameshkumar is the Investigating Officer who has in detail conducted the investigation after arrest of the accused. He spoke about recovery of incriminating articles at the instance of the accused etc.
(xxv) PW.28-Dr. Lingegowda is the In-charge Scientific Officer of Regional Forensic Science Laboratory, Davanagere who has spoken to about the testing of articles sent to the FSL and report vide Ex.P42. He has deposed that he has examined the articles received i.e. mud, sample mud, one chaddi, one macchu, one T-shirt, one pant, one shirt, one pant. He has stated that he has examined the said articles and found that except item Nos.2 and 4, all the remaining articles are stained with human `B’ group blood.
18. On the basis of the above said evidence, the prosecution has projected three important circumstances:
(1) Homicidal death of deceased attributable to the guilt of the accused.
(2) The recovery of articles and identification of accused persons.
(3) Recovery of incriminating articles at the instance of the accused.
19. We would like to now discuss on the said important aspects. So far as identification is concerned, the prosecution has mainly relied upon the evidence of PWs.6, 12, 13 and also the evidence of PW.22 the Tahsildar and PW.26 the Investigating Officer. Before adverting to the evidence of these witnesses, we would like to advert to the points canvassed by the learned counsel for the appellants by producing two decisions with reference to identification.
(a) In a case reported in AIR 2017 SC 642 between Md.Sajjad alias Raju alias Salim and State of West Bengal the Hon’ble Apex Court at Head Note (A), regarding TIP held thus:
“Sec.300, 302 murder, in a test identification parade, delay of 25 days in holding of identification parade, no identification marks or special features disclosed by the witnesses, witnesses meeting accused by chance at night, only for some fleeting moments, conviction cannot be based on such identification simpliciter. Suspicion expressed by wife of deceased also not enough thus, accused entitled to benefit of doubt.”
The learned counsel for the appellants has taken us through the relevant paragraphs i.e. 15, 16 and 17 but, the sum and substance of the above said paragraphs is that, if a particular feature of the accused is not substantially attributed by the witnesses, their evidence should not be normally believed by the Court without any other corroborative material facts in the case.
(b) In another decision reported in AIR 1968 SC 938 in the case of Laxmipat Choraria and others vs. State of Maharashtra, the Hon’ble Apex Court has observed at para.19 to the effect that photograph of the accused were shown to the material witnesses and for their identification before the Court. The Court held that there can be no doubt if the intention is to rely on the identification of the suspect by a witness, his ability to identify should be tested without showing him the suspect or his photograph or furnishing him the data for identification. Showing a photograph prior to the identification makes the identification worthless.
20. Per contra, learned Addl. SPP drawn our attention to the decision of the Apex Court reported in (2010) 3 SCC 508 between Mulla and another vs. State of Uttara Pradesh, wherein the Hon’ble Apex Court has observed relying upon its own earlier decision in Lal Singh vs. State of U.P. (2003) 12 SCC 554 and observed that, the aspect of identification has to be considered in the facts and circumstances of each case. Though it is desirable to hold Test identification parade at the earliest possible opportunity, no hard and fast rule can be laid in this regard. If the delay is inordinate and there is evidence probabalizing the possibility of the accused having been shown to the witnesses, the Court may not act on the basis of such evidence moreover, where the conviction is made not solely on the identification but, on the basis of other corroborative evidence such as recovery of incriminating articles, stand on a different footing. Court has to consider the evidence in its entirety.
21. Therefore, on perusal of the abovesaid decisions, it is clear that there is no hard and fast rule and such of fixed rules or guidelines as to under what particular circumstance, the Court has to rely upon the test identification parade for identification of the accused and under what circumstance the Court can discard such evidence. The fundamental basic principle is that, in the evidence before the Court, if the identification by the witnesses before the Court is so credible and acceptable, it is substantive evidence before the Court, if the Court is satisfied with regard to its testimony of such witnesses. Considering the other factual aspects of the case and circumstances of the case, the Court can definitely rely upon such evidence of witnesses irrespective of the fact that, witnesses have not given the physical features of the accused or explanation as to how they were able to identify the persons at the time of incident and at the time of identification before the Court.
22. Therefore, as observed by the Hon’ble Apex Court, in the above noted case that it all depends upon the facts and circumstances of each case, the Court has to consider the evidence of such witness to ascertain whether it is trustworthy for acceptance or not. Bearing in mind the above said ruling of the Hon’ble Apex Court, now we would like to examine the evidence of the important witnesses.
23. Of course, PW.6 is a relative of the deceased. He has admitted that, they are all relatives but, in the course of cross-examination, these three witnesses have invariably stated about the incident that occurred on 20.1.2012 and that these witnesses have actually seen the accused nos.1 and 2 moving on a motorcycle from Bheemasamudra towards Hullur village. They have subsequently stated that one of the accused was wearing a red T-shirt and brown colour pant and another checks shirt and green colour pant. They were suspiciously moving with motor cycle slowly by seeing either side.
24. These witnesses have stated that the accused persons were moving on a motor cycle slowly on the road. Therefore, these witnesses have leisurely seen them because motorcycle was moving very slowly. Immediately thereafter, they came to know on the same day that Nanjundappa was murdered in his land. Virtually almost all the witnesses to the prosecution have initially suspected one Mara alias Marappa but, the fact remains that these persons have suspected the accused even before their arrest stating that the two persons were going slowly on the motorcycle and at that relevant time, they suspected that accused nos.1 and 2 might have murdered the deceased keeping in mind their above conduct. Learned counsel has drawn our attention to the fact that, these two persons were examined by the Police on 22.1.2012 and particularly, PW.6 was examined again on 29.1.2012 and on 29.1.2012 the accused were in the custody.
25. PWs.6 and 12 have admitted in their examination-in-chief that they saw accused persons in the Police Station and thereafter they have identified these two accused persons in the identification parade, about 2 months later before the Tahsildar (PW.22). However, as we have carefully perused the evidence of these witnesses, PW.13 in fact, has not stated that he has seen the accused in the Police Station for the first time and later before the Tahsildar during the identification parade. Even during the course of cross-examination of PW.13, there is absolutely no suggestion to the effect that the Police have secured the presence of these witnesses and shown accused Nos.1 & 2 in the Police station.
26. So far as all these three witnesses are concerned, there is no suggestion as to why these witnesses have to falsely implicate the accused persons. However, added to that, the accused persons are totally strangers to these witnesses. There is no reason as to why PWs.6, 12 and 13 would falsely implicate these accused persons into the crime. In the course of cross-examination of these witnesses, they were suggested that they did not go to the Police for identification of the accused persons at all. But this suggestion has been subsequently denied by these witnesses.
27. The evidence of PW.22-Sri Kumaraswamy, in our opinion, plays a dominant role in this particular case. PW.22 is a public servant. He was working as Tahsildar of Chitradurga Taluk during that particular point of time. He has deposed before the Court that at the request of the Police, he has conducted the test identification parade of accused nos.1 and 2 on 30.03.2012. He issued notices to the witnesses and discreetly conducted the test identification parade. In his evidence in the examination-in-chief, he has vividly stated as to how he asked the other inmates of jail along with accused nos.1 and 2 to stand and how he gave numbers to them. He has stated that PWs.6, 12 and 13 have specifically identified the accused persons. PWs.6, 12 and 13 not only identified the accused persons one time, but on three times. They have identified the accused persons candidly without any doubt in the test identification parade. The witness also stated that after the test identification parade, he has given his report as per Ex.P26.
28. In the cross-examination, nothing worth has been suggested with regard to conduct of the test identification parade, and procedure followed by this witness. With regard to changing of places of inmates of the jail along with the accused giving changed numbers. Though some omission has been elicited with regard to overwriting in the report, but that has no where affected the report submitted by this witness. It is elicited that, he cannot say as to on what basis PWs.6, 12 and 13 have identified the accused persons. Here we have to bear in mind that, as to how the accused persons were identified in the test identification parade cannot necessarily be in detail gone into because, there is no questions put to PWs.6, 12 and 13 with reference to this particular aspect except stating that they have not given any physical features of the accused. The said witnesses in fact amongst 10 persons in jail, candidly identified accused nos.1 and 2 on different times. Therefore, all these witnesses are specific with regard to the identification of these accused persons.
29. Now coming to the showing of the accused persons in the Police Station, whether totally invalidates identification before the Court.
30. It is worth to refer here a decision of the Madras High Court in Criminal Appeal No.498 of 2014 and Crl.M.P.No.5255 of 2017 dated 19.12.2017. Some interpretation has been made by the Madras High Court which also been taken into consideration in para.12 after relying upon the decisions of the Hon’ble Apex Court reported in (1) (1994) 4 SCC 260 in the case of Joginder Kumar vs. State of Uttar Pradesh and (2) (2017)6 SCC 1 in the case of Mukesh vs. State (NCT of Delhi) popularly known as Nirbhaya case. Though there is material on record to show that the informant had opportunity to see the accused persons after they are arrested, the test identification parade cannot constitute substantive evidence. It is on the basis of the above said decisions, the Madras High Court has observed at Para 12 as follows:
“12. In cases of chain snatching and dacoity, the accused do not emulate the methods of the infamous Pink Panther, who leaves behind his calling card after the commission of a crime. Therefore, in the complaint to the police, the victim will give some identifiable features of the accused such as the skin complexion, hair style, height, general constitution and would generally say that he/she can recognize him, if shown. On such a complaint, the Police will register an FIR against unnamed accused and proceed with the investigation. Whenever the Police round up a suspect or when a suspect is arrested in another case and he spills the beans about his involvement in this case, the minimum thing which the police will be expected to do is, to call the victim to the police station and show him/her the suspect. There is absolutely no bar in the Code of Criminal Procedure or in any other law for this. All over the world the police work only this way, because, this is a fundamental commonsensical approach ”
Therefore, Madras High Court has held that merely because such a procedure has been adverted to by the Police and merely accused were shown in the Police Station, that itself will not totally discard the evidence of those witnesses from reliance. Though two witnesses PWs.6 and 12 have stated that they have seen accused persons in the Police Station, there is no suggestion to these witnesses or PW.2 only because of that reason they were shown in the Police Station they could identify the accused nos.1 and 2 during the test identification parade. It can be otherwise demonstrated that because these witnesses have specifically seen the accused persons while they were moving on the motorcycle and particularly they have stated that they had sufficient opportunity to see them, it is not a glimsical view of the accused, because they have specifically stated that they were moving very slowly on the motorcycle looking on the either side of the road suspiciously. Therefore, in our opinion, these three witnesses had sufficient opportunity to see the accused persons. Moreover, these two accused persons were never seen by these witnesses at any point of time in their village and these two accused persons were totally strangers to the witnesses. When such being the case, there was no reason as to why these two witnesses have to falsely implicate the accused persons by giving false evidence before the Court.
31. Therefore, in our opinion, though some elucidation of the facts are there with regard to PWs.6 and 12 that they have seen the accused in the Police Station, nevertheless, strong evidence of PW.13 remains un-challenged, as during the course of cross- examination of these witnesses, they have specifically stated that they have seen the accused. Therefore, we are of the opinion that identification of accused on the day of incident is established by the prosecution.
32. Though these witnesses have stated about witnessing accused persons, it will not suffice to come to the conclusion that accused persons are the culprits. There is no evidence placed before the Court that the accused persons were in fact last seen with the deceased at any point of time, nor they were seen near the land of the deceased, but some distance away from the land of the deceased, these two accused persons were seen. This identification alone is not sufficient to draw any inference if prosecution has not otherwise produced any believable material on record. In this background, the recovery of incriminating articles at the instance of accused play a vital role.
33. RECOVERY Now we take up recovery of incriminating articles at the instance of accused for discussion;
The prosecution has mainly relied upon recovery of the material at the instance of the accused persons very strongly to implicate them. So far as accused No.1 is concerned, the evidence of the Investigating Officer is that, after apprehension of accused Nos.1 and 2, on their personal search, found two rings with them. The evidence of PWs.16 and 17 coupled with the evidence of the Investigating Officer have been relied upon by the prosecution so far as this aspect is concerned. Of course, PWs.16 and 17 have not fully supported the case of the prosecution. The Court has to examine whether their evidence can be relied upon.
34. PW.16-Mallikarjuna has deposed before the Court that about one and half year ago, prior to his evidence before the Police, the Police told him that, they have caught some culprits in connection with this case. The witnesses have identified these persons as accused Nos.1 and 2 before the Court. The Police have taken photographs and took the signature of this witness as per Ex.P16(a). He has stated that, the Police have seized one auto-rickshaw, but he has not actually seen the seizure of mobile and auto-rickshaw. He has not stated anything about the seizure of the rings at the instance of accused Nos.1 and 2. Therefore, this witness was treated hostile. In the course of cross-examination, it is suggested that the Police have actually seized the auto-rickshaw, but he has not seen the auto-rickshaw and mobile. Police have not shown any rings to this witness with regard to the seizure of the same, but they have taken the signature on Ex.P16. Therefore, the evidence of this witness may not help the case of the prosecution.
35. PW.17-Nagaraja is another witness examined for the same purpose. Perhaps for the reason that, PW.16 has not supported the case of the prosecution. This witness has stated, that himself and PW.16 were present when the Police have apprehended the accused persons and they identified accused Nos.1 and 2 before the Court. The Police have shown two rings recovered from the accused and took signature of this witness on Ex.P16 and marked as Ex.P16(b). He has identified MOs.2 and 3 as the same rings which were shown by the Police to them at the particular point of time. In the course of cross- examination, it is further deposed that, he has given the evidence in some other case also, i.e. in Sessions Case No.107 of 2012 and he has deposed that, the Police have told this witness that, they have caught some thieves and took their signature to the mahazar. The evidence given by this witness in some other case is also got marked as Ex.D2. He has also stated that, the Police have told him that, they have seized the rings from the accused, but they have not shown the rings to this witness and that, he has falsely deposed before the Court that, he has actually seen the rings at the instance of the Police. The said suggestion has been denied by the witness. What would be gathered from the evidence of this witness is that, he has identified MOs.2 and 3 which was shown to him by the Police which was recovered at the instance of the accused, as per the evidence of the Investigating Officer. Ex.D2 though it is marked, how it is relevant, whether it is in connection with this case or not is not established during the course of cross-examination. Of course, in Sessions Case No.107 of 2012, this witness has given the evidence that, he cannot identify the accused persons in that case. Whether these accused persons are the same accused in the said case and they were shown to this witness in the Court in the said case or not, those facts are not brought out in the course of cross-examination. Therefore, the Court can only draw an inference that the Police have taken two rings from the accused as stated by the Investigating Officer and shown to PW.17. In this context, the evidence of Investigating Officer-PW.27 also plays a dominant role.
36. PWs.25 and 26 (Investigating Officers) have deposed that on 27.01.2012, they got information that two persons were suspiciously wandering near Katihalli (Uppahalla) along with the auto-rickshaw. These two witnesses and others, who were on the rounds in the Bheemasamudra Road, went to the particular spot and the accused persons started running away to the auto-rickshaw, some villagers and the Police were able to catch hold the accused at that time, and came to know about the names of the accused as Girish and Sadashiva (accused Nos.1 and 2 respectively). Orally, they have disclosed that, they have committed the murder of the deceased – Nanjundappa and taken three rings from him. On personal search of the accused, the Police found two rings, one with accused No.1 and another with accused No.2 and also one Nokia and one Karbon mobile phones, a purse and a foldable knife with them. Immediately, the Police have drawn mahazar as per Ex.P16 and recovered those articles under mahazar Ex.P16. Particularly, the rings pertaining to this case are marked as MOs.2 and 3. In the course of cross-examination, it is elicited that Mallikarjuna and Nagaraja are the panch witnesses, only after they consented to act as Panch, they were secured by the Police to that particular place and about 20 to 25 persons were assembled at that particular time, when the accused were nabbed by the Police. Some casual questions have been put in the cross-examination that, panchanama was written by one of the Police, but PW.25 did not see because he was concentrating on the accused persons, etc. Therefore, there is no much cross-examination so far as the seizure of the articles are concerned, i.e. MOs.2 and 3. Even in the further examination-in-chief, it is reiterated with regard to seizure of these articles, but nothing has been questioned in the course of cross-examination so far as this particular aspect is concerned. The whole cross-examination is concentrated with regard to the seizure of the chopper and other articles from accused No.1, i.e. the recovery of one golden ring from accused No.1 from Kalikamba Jewelers. So far as recovery of MOs.2 and 3 is not even controverted in the course of cross-examination.
37. Likewise, PW.26 also deposed in the same manner, in the course of cross-examination, whereas, the concentration was mainly with regard to the other aspects, but no concentration has been made so far as MOs.2 and 3 are concerned. PWs.25 and 26 are the public servants and their evidence is also supported by the evidence of PW.17 to some extent. Though PW.16 turned hostile, but it cannot be said that, no recovery has been made at the instance of accused Nos.1 and 2, particularly i.e., MOs.2 and 3.
38. Subsequent to the arrest of the accused persons, PW.27-the Investigating Officer has, in fact, recorded their voluntarily statement. As per the voluntary statement of the accused, he has deposed that on 28.01.2012, the accused persons took the Police as well as panch witnesses i.e., PWs.18 and 19 to the land of one Obanna and accused produced a chopper from a bush and the Police have recovered the same by drawing mahazar as per Ex.P19 and the material object was marked as MO.15. He also stated that thereafter, accused No.2 took the panch witnesses and the Investigating Officer to the house of accused No.2 and both the accused went inside the house and produced the clothes which were alleged to have been worn by them at the time of incident and the said articles were recovered under a mahazar as per Ex.P.20 and those articles were also marked as MOs.5 to 8. MOs.5 and 6 are the clothes of accused No.1 and MOs.7 and 8 are the clothes of accused No.2. It is also the case of the Investigating Officer that, on the same day, accused Nos.1 and 2 took the Police and the said witnesses to the jewellery shop called Kalikamba Jewellers. Accused No.1 showed the said shop and told that he has sold one ring to the owner of the said shop and in fact, PW.9 has told to the Police that accused No.1 has sold a ring and he produced the same which was seized under Ex.P2 as per MO.1.
39. In the course of cross-examination, though the said suggestion has been made to this witness that the witness has not gone to that particular place and recovered any articles at the instance of accused Nos.1 and 2, but nothing has been elicited from the mouth of this witness, as to why he should be disbelieved and what is the ill-will or hatredness against the accused persons.
40. The evidence of PWs.18 and 19 requires to be considered. PW.18-R. Lokeshappa has deposed before the Court that on 28.01.2012, the accused persons took the Police and the witnesses to the land of Nanjundappa to show the place of incident and also the place where the clothes of the deceased were burnt. He also deposed that, after the said panchanama on the spot, the accused persons took the Police and the witnesses to a land situated on the road between Bettadanagenahally and near the land belonging to Obanna and accused No.1 took out a chopper and produced the same before the Police and the same was recovered and seized from the spot and he, in fact, identified his signature in the mahazar Ex.P19 as Ex.P19(a) and also identified MO.15. PW.19. Somashekhar A., has also, in fact, supported the said aspect of the matter so far as recovery of chopper is concerned.
41. It is also elicited in the course of cross- examination by the learned counsel for accused No.1 that, when the chopper was seized, it was stained with blood and the Police have also noted down the presence of the blood stains on the chopper, but they have not collected the blood stains separately from the weapon. Some questions have been put that, when the said chopper was recovered at the instance of the accused, no other relatives were present and in fact, it is also elicited that, the said place is open to the public and the people would be walking on the said road. Much has been concentrated with regard to alternative allegations made that, one Mara alias Maranna was working in the land of one B.S. Manjunath and the allegations were made against that particular man and in order to falsely implicate the accused, the chopper was shown to had been recovered at the instance of the accused, but in fact, not recovered at the instance of any of the accused. So far as this aspect is concerned, PW.19 has also deposed with regard to recovery of these rings, which would be discussed little later.
42. Learned counsel for the accused draws our attention to the evidence of PW.11, who is the spot pancha, by name, Prabhakar. In the examination-in- chief itself, the said witness has stated that, at the time of spot panchanama under Ex.P5, the Police have also seized a chopper, MO.15. However, the chopper which was seized in this case was shown to this witness either in the examination-in-chief or in the course of cross-examination to ascertain whether the same chopper was seized by the Police at that particular point of time or not. Though there is some discrepancy, as rightly contented by the learned counsel for the accused, this witness is only a witness to the spot panchanama and is not a witness to the recovery of MO.15. With all curiosity, we have also examined spot panchanama-Ex.P5, there is absolutely no mention with regard to the seizure of this article. So this witness has virtually improved his version in the examination-in-chief, with regard to the seizure of the chopper at the spot. But the said version of this witness is not corroborated by any other material on record. On the other hand, Ex.P5 mahazar itself discloses that no such seizure has been made, or the chopper was subjected to any property form immediately after Ex.P5. On the other hand, the evidence of PW.18 and the Investigating Officer clearly show that the said chopper was recovered at the instance of accused No.1, after apprehension of the accused by the Police. Therefore, any improvement contradiction or omission cannot be considered in isolation so as to eradicate the other substantial evidence available on record. Perhaps, it can be treated as an isolated stray admission on the part of PW.1 which is not sufficient to discard the evidence of PWs.18 and 27, who have specifically stated about the recovery of the chopper at the instance of accused No. 1.
43. The last recovery, is recovery of a golden ring at the instance of accused No.1. The prosecution has relied upon the evidence of PW.27, as we have already referred to along with PW.19 as well PW.9.
44. PW.9-Govardhana has deposed before the Court that, he has been running a shop, by name, Kalikamba Jewelers at Chitradurga since 20 years. About one year prior to his deposition before the Court, accused No.1 came to his shop and sold 7 grams golden ring to him and taken Rs.7,000/- and eight days later, the Police brought accused No.1 and accused No.1 asked for production of the said gold ring and this witness had produced the same and the Police have recovered the same as per MOs.1 and 2. This witness has, in fact, identified the said ring also and he also authenticated the drawing up of mahazar Ex.P2 at that particular point of time. Learned counsel for the defence during cross-examination elicited that except the production of the golden ring, no other record have been maintained by this witness and he has also stated that, he did not make any enquiry with regard to the health condition of the mother of the accused before giving any money by taking a golden ring from him. It is also elicited that, no other persons were present except Police and accused No.1 at that particular point of time. Therefore, this cross- examination, in fact, clarifies the presence of accused No.1 and Police, but he has stated that no other person was present except him. Perhaps, this question was put to exclude the presence of the panch witness, but on the other hand, it virtually amounts to admitting the presence of accused No.1 and the Police.
45. When PW.19 has categorically stated that, he was very much present at that particular point of time, when MO.1 was recovered at the instance of accused No.1. Though this witness has stated that, he has not maintained any record, but it all depends upon the nature of business he does, whether it is huge or whether he was casually doing the work in a small place, whether he is aware of any legal aspects in maintaining the records etc., to be seen. Just because he has not maintained any record altogether his evidence cannot be overthrown. In such an event, something more have to be elicited from the mouth of this witness as to why he has to falsely implicate the accused persons to the crime whether he had any ill-
will or hatred towards accused etc. There should be some material on record to show that why he should be disbelieved by the Court. Coupled with the evidence of this witness and the evidence of PWs.19 and 27 the Investigating Officer the case of prosecution is fully established. Therefore, though some discrepancy is there, it is not sufficient to completely eradicate the evidence of this witness. Therefore, we are of the opinion that, the prosecution has also established the recovery of MO.1 at the instance of accused Nos.1 and 2.
46. Learned counsel for accused also drew our attention to the clothes of the accused alleged to have been produced by accused No.2 alone, but there is evidence to show that, accused No.1 went inside the house of accused No.2 and produced any clothes. But the fact remains that, the accused persons have not specifically denied that those clothes do not belong to them at all. The evidence of PWs.6, 12 and 13 can also be referred here because the clothes of these accused persons were identified by PW.12. In their earlier statement before the Police and also consistent evidence before the Court shows that, they identified the clothes worn by the accused at the time when they saw them, after the incident being taken place. Therefore, the recovery is not only supported by the evidence of PW.19 and the evidence of the Investigating Officer, but also supported by the evidence of PW.12, who has actually seen the accused persons on that particular day. Therefore, we have no hesitation to hold that, accused No.2 alone produced the clothes, when it is established that, those clothes belonged to accused Nos.1 and 2, it becomes the responsibility of the accused to explain the same as to how their clothes were stained with blood.
47. In order to connect the recovered articles to the crime, the prosecution has also examined PWs.1 to 4 and also PWs.7 and 8, who have categorically identified the gold rings belonged to the deceased. Though we have already referred the evidence of PWs.1 to 4, 7 and 8, but there is no suggestion even in the course of cross-examination that these rings did not belong to the deceased. There is absolutely no cross-examination so far as these rings are concerned. Further added to that, PW.8 has taken these rings to his interim custody and thereafter also, the trial Court has confirmed the said order in favour of PW.8 so the entitlement of this article was also, in our opinion, plays a role. PW.8 has stated that, the said article belongs to his brother and has taken them to his custody. When once the recovery is established before the Court, it is the obligation on the part of the accused to show that, how it came into their possession, when it was actually worn by the deceased before his death. Therefore, such fact which is exclusively in the knowledge of the accused persons to explain as to what happened to the deceased and how those articles came to their possession etc. If there is no explanation, then the Court has to draw an inference that, they are culprits of the crime.
48. Seized articles MOs.15, 5 to 8 were also sent to the F.S.L. PW.28-Dr. Lingegowda has deposed before the Court that, MOs.5 to 8 and 15 were sent to the F.S.L. for examination and he has examined them and found ‘B’ group blood on the above said material objects. Particularly, MOs.5 to 8 are the clothes of the accused which were stained with ‘B’ group blood. Though the Investigating Officer has committed an error in not taking the blood group of the deceased, but nevertheless it is shown that the blood group of the deceased are found on the clothes of the accused. It is not the defence of the accused that the said clothes were stained by their own blood group. In the absence of such defence being taken, even though, there is some lapse on the part of the Investigating Officer, that lapse alone is not sufficient to discard the evidence of PW.28. Therefore, in the wake of non-explanation by the accused, which also amplified the case of the prosecution that, the accused persons must be the perpetrators of the crime.
49. Looking to the above said facts and circumstances of the case, the trial Court, in our opinion, has appreciated the material evidence on record and arrived at a correct conclusion that, the accused persons have committed the murder of the deceased-Nanjundappa for wrongful gain. We have no other reason to interfere with the judgment of conviction passed by the trial Court. We are also not accepting the submission of the learned counsel that, the offence may fall under Section 379 of IPC and not under Sections 302 or 382 of IPC because of the above said strong circumstances which are running against the accused.
50. Hence, the appeals are devoid of merit.
Accordingly, the appeals are dismissed. However, the accused persons are entitled for set off under Section 428 of the Code of Criminal Procedure, 1973.
Sd/- JUDGE Sd/- JUDGE Sk/kvk