State Of Karnataka vs Sri B Y Venkatesh @ Muthuraju

R IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.883 OF 2013 BETWEEN:

STATE OF KARNATAKA BY MAHADEVAPURA POLICE STATION BENGALURU. ... APPELLANT (BY SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) AND:

SRI. B.Y. VENKATESH @ MUTHURAJU SON OF YELLAPPA AGED 33 YEARS RESIDENT OF RENTED ROOM OF RAMANJINI NAGONDANAHALLI ROAD IMMADIHALLI BENGALURU-560 066. ... RESPONDENT (BY SRI J.T. GIREESHA, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ACQUITTAL DATED 21.03.2013 PASSED BY THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN SESSIONS CASE No.724 OF 2007 – ACQUTTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 392, 302 READ WITH SECTION 34 AND 201 READ WITH SECTION 34 OF INDIAN PENAL CODE.

THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.09.2019, COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:

JUDGMENT This appeal is filed by the State challenging the judgment and order of acquittal passed in S.C.No.724 of 2007 dated 21.03.2013 on the file of the Principal City Civil and Sessions Judge, Bengaluru acquitting accused No.2 for offences punishable under Sections 392, 302, 468, 201 read with Section 34 of Indian Penal Code.

2. Brief facts of the case:

It is the case of the prosecution that, accused Nos.1 and 2 on 21.12.2006 at about 9.45 p.m. with dishonest intention of making unlawful gain were waiting on a road which leads to Vaidehi Hospital from ITPL in a Maruthi 800 car bearing No.KA-04-M-6150 of C.W.15. At that time, the deceased Adhip Lahiri was proceeding on the said road in his car bearing No.DL-3C-Q-2478. The accused followed him and intentionally dashed against his car in front of Sai Baba Hospital. When the deceased questioned the accused, they caught hold of him, sprayed pepper spray on him, gagged his mouth, tied his hands and legs in a rope and carried him in their car. Thereafter, the accused relieved laptop, Sony Ericson mobile phone, gold ring, wrist watch, dairy, driving licence, identity card of deceased, bank cheque book, HSBC bank credit card and Citi Bank ATM card. Further, the accused came to Garudachar Palya Tank. Accused No.2 stabbed the deceased on his legs with knife and caused severe bleeding injuries. Both accused Nos.1 and 2, in furtherance of their common intention, strangulated the deceased and committed his murder. After committing the murder, the accused withdrew Rs.75,000/- from the bank account of the deceased by using the ATM card. They purchased mobile phones, clothes and other articles from the shop of C.W.27 by using HSBC Bank credit card. They forged the signature of the deceased on the credit card bills. The accused threw the dead body of the deceased near the tank bund of Garudachar Palya and deserted his car on pipeline road at Yeshwanthpura with an intention of screening themselves from legal punishment. The police based on the complaint have registered the case and apprehended accused Nos.1 and 2 on 31.12.2006. Accused No.1 was reported as dead and hence, the case was abated against him during Trial and accused No.2 was in judicial custody during the Trial.

3. The accused did not plead guilty and claims for trial. The prosecution in order to prove their case, examined 49 witnesses, got marked 101 documents and produced 104 material objects. The Court below acquitted accused No.2 for the offences punishable under Sections 392, 302, 468 and 201 read with Section 34 of Indian Penal Code. Hence, the present appeal is filed by the State.

4. The main contention of the State in the appeal is that the Court below has failed to consider the prosecution material both oral and documentary. The Trial Court has failed to draw proper inference from the evidence adduced on behalf of the prosecution and the very finding of the Trial Court is perverse. The Trial Court has also failed to see that there was a strong motive for the accused to commit the murder of the deceased, as it was a murder for unlawful gain. Though the Trial Court having held that there is sufficient evidence against accused No.1, committed an error in holding that there is no evidence against accused No.2. The Trial Court ought to have convicted accused No.2 on the same set of facts and evidence. That the accused were identified by the witnesses and there is circumstantial evidence to show that the accused had a motive to commit the offence. The evidence of P.W.45, who is a handwriting expert has deposed that the signature found on the credit card bill tallies with the signature of accused No.1. When the police arrested accused No.2, M.O.40-knife and M.O.70-iron knife was recovered at his instance. There is evidence to prove the recovery. Further P.W.22 has identified accused Nos.1 and 2 and has deposed that they came to his shop and purchased the mobile phone. He also identified the signature of accused No.1 on the bill. P.W.12, in his evidence deposed that ATM card belonging to the deceased was used three times and cash had been withdrawn. It is evident that after the death of the deceased, the accused had used the card and had withdrew money from ATM. The police have also recovered pepper spray used by the accused, from the possession of accused No.2. The police have also seized the knife used by the accused, in the presence of panchas, under a mahazar at the instance of accused No.2. The report of the Forensic Science Laboratory indicates that the blood found on the iron knife, M.O.70 is human blood and belongs to ‘B’ group. The Forensic Science Laboratory Experts have also stated before the Court that the finger prints found on the car tallies with the finger prints of accused Nos.1 and 2. Thus, there is clinching evidence to prove the involvement of accused No.2 in the commission of offence. Therefore, the Trial Court ought to have convicted the accused No.2 for the charges leveled against him. Hence, the judgment of acquittal suffers from legal infirmity and submitted that the same is liable to be set aside.

5. Learned High Court Government Pleader appearing for the State would contend that the test identification parade was conducted. The witnesses have identified the accused and so also the mobile phone, gold and cash of the deceased was also recovered, since the accused have drawn an amount of R.75,000/-, after committing the murder. It is her case that the prosecution evidence clearly discloses that, it is a murder for unlawful gain and in spite of the fact that test identification parade was conducted and recovery of mobile phone, gold and cash of the deceased at the instance of accused was proved, the Court below has committed an error in acquitting the accused. It is also contended that, masks were put on the accused persons, when they were taken and the witnesses have categorically identified the accused persons. The witnesses, who have been examined before the Court below clearly speak about using of the credit card by the accused persons, after committing the murder. Therefore, the Court below has failed to consider the material on record and the findings of the Trial Court is perverse. Hence, the judgment and order of acquittal passed by the Trial Court against accused No.2 be set aside and he be convicted for the charges leveled against him.

6. Per contra, learned counsel appearing for the accused No.2 would submit that the case against accused No.1 is abated. The case of the prosecution is that, accused No.2 was along with accused No.1. The material placed before the Court is only against accused No.1 and not against accused No.2. There is no material against accused No.2. The very conducting of the test identification parade itself is doubtful. Though the prosecution contends that the knife was seized at the instance of accused No.2, the same has also not been proved. The case rests upon circumstantial evidence and none of the circumstances have been proved against the accused No.2. Therefore, the Court below has rightly evaluated the evidence available on record and disbelieved the test identification parade conducted in arriving at the conclusion that the same is not in accordance with law and the same has to be vitiated. In the background of the fact that the test identification parade conducted itself is doubtful and also in the absence of recovery of the incriminating objects, the Court below has rightly come to the conclusion that the prosecution has failed to prove the case against the accused beyond reasonable doubt. Hence, prayed this Court to dismiss the appeal, as there is no material to reverse the findings of the Trial Court.

7. Having heard the arguments of learned High Court Government Pleader appearing for the appellant- State and the learned counsel appearing for the accused and also on perusal of the material available on record and the contentions raised by the learned counsel for the parties, the points that arise for our consideration are:

(i) Whether Court below has committed an error in acquitting accused No.2 for the offences punishable under Sections 392, 302, 468 and 201 read with Section 34 of Indian Penal Code and it requires interference of this Court?

(ii) What order?

8. Point Nos.1 and 2:

The nut shell of the case of the prosecution is as stated supra. That accused Nos.1 and 2 dashed against the car of the deceased, caught hold of him, sprayed pepper spray on him, gagged his mouth, tied his hands and legs with rope and carried him in their car and got relieved the accessories and other articles which were in his possession and committed the murder by strangulation. Thereafter, used his ATM card and withdrew an amount of Rs.75,000/- and purchased mobile phone, clothes and other articles from the shop of C.W.27. The accused also threw the dead body near the tank bund of Garudachar Palya and deserted his car in pipeline road at Yeshwanthapur with an intention of screening themselves from legal punishment.

9. The prosecution, in order to prove their case, examined P.Ws.1 to 49 and got marked the documents Exs.P1 to P101. We would like to refer the evidence in brief in respect of accused No.2, since the case against accused No.1 is abated. In order to cull out the incriminating evidence against accused No.2, the material evidence of prosecution is as follows:

10. P.W.1 is the Administrator of the company in which the deceased was working as a Software Engineer. It is his evidence that on 22.12.2006 at about 3.15 or 3.20 a.m. when he was in his house, he received a phone call to his mobile from one Mr.Vinok who was working as Human Resources Head in their company. He informed that the deceased is found missing and whether he knows about the same. In response to the same, he told him that he would try to find for him and would come back to him about his whereabouts. Next morning, when he was in office, he came to know that the deceased has been murdered and his body has been thrown near a tank situated at Garudacharpalya. He saw the dead body of the deceased at Bowring Hospital. He was subjected to cross- examination.

In the cross-examination it is elicited that he came to know through Mr.Vinok on 22.12.2006 during lunch time that deceased was murdered. He saw the body of the deceased at Bowring Hospital at 5.30 p.m.

In the cross-examination by the counsel for accused No.2 it is elicited that he does not know personally anything about the family affairs of the deceased.

11. P.W.2, in his evidence, states that on 22.12.2006 at about 4.00 p.m. when he was in the office, police came and informed that deceased was murdered. The office records reveal that he had left the company on 21.12.2006 at about 9.30 p.m. after completion of his work.

In the cross-examination it is elicited that he did not see him personally when the deceased left the office at 9.30 p.m. Based on the records maintained in their office he told that he left at 9.30 p.m.

12. P.W.3, in his evidence, states that he was working as Security. That on 21.12.2006 as usual he came for his duty and deceased left the office at around 9.30 p.m. after completing his work. He had also entered the number of the lap top carried by the deceased at the time when he left the company in the register maintained by them. The next day he came to know that he was murdered. The police have also seen the entries which he had made in the register.

In the cross-examination it is elicited that all the employees of the company including the Deputed Employees will have to sign in the attendance register at the time they enter and go out of the company. It is suggested that he had not reported for duty in their company on 21.12.2006 at about 9.00 p.m. and had not made any note of the timings of the deceased leaving the company and the said suggestion was denied.

13. P.W.4, in his evidence, states that he knows accused No.1, as mother of accused No.1 was working as Peon in the school where he was studying from 8th standard to 10th standard. That on 21.12.2006 at about 6.30 p.m. accused No.1 came near his house on a Hero Honda Ambition motorcycle and requested him to give his car to take his mother to the hospital since she is not keeping well and that he would return the car on the very same night. In response to the request, he handed over his car to accused No.1. Accused No.1 left his motorcycle with him after taking his car. Accused No.1, thereafter, did not bring back his car on that night. Next day morning i.e., on 22.12.2006 he went near the house of accused No.1 to make enquiries about his car in the motorcycle which accused No.1 had left with him. When he reached the house of accused No.1, he came out of the house and handed over the car to him and in turn, he handed over the motorcycle to accused No.1. At that time, accused No.1 was in a perturbed mood and when he asked him why he did not return the car on the previous night, he told that as it was late in the hospital, he could not come and deliver the same. Thereafter, on 1.1.2007, the police had come near his house along with accused No.1. The police told that accused No.1 is involved in a murder case and seized his car in connection with the said case and thereafter, he got released the car to his custody. He identifies M.O.1 as the car belonging to him.

In the cross-examination it is elicited that he had not known accused No.1 very closely and he had seen him at Varthur. The house of accused No.1 is at a distance of about 2 kms. from his house. Prior to this incident, accused No.1 had not taken his car. It is suggested that accused No.1 does not know driving of any car and that he has not seen accused No.1 at all and had not given his car M.O.1 to accused No.1 on his request and the said suggestions were denied.

14. P.W.5, in his evidence, states that he has seen accused Nos.1 and 2 who are present before the Court. They had come to the parking lot at Kolar where he was working on 23.12.2006 and had parked their Hero Honda motorcycle at about 7.00 p.m. Thereafter, they took their motorcycle. The police had brought accused Nos.1 and 2 near the parking lot where he was working on 4.1.2007. At that time, the police asked whether he had seen them and in response to the same, on seeing accused Nos.1 and 2 who were with the police, he told them that he had seen both of them. He was subjected to cross-examination.

In the cross-examination it is suggested that accused Nos.1 and 2 had not come to the parking lot on 23.12.2006 at 7.00 p.m. and thereafter not taken the said motorcycle on 26.12.2006 and the same was denied. It is also suggested that accused Nos.1 and 2 had not been brought to the parking lot by the police on 4.1.2007 and on that day, he had not told the police that he had seen accused Nos.1 and 2 prior to that day and the same was denied. It is elicited that it is not correct to suggest that he is falsely deposing that he had seen both of them at the parking lot at Kolar on 23.12.2006, 26.12.2006 and 4.1.2007. It is elicited in the cross-examination of the learned counsel for accused No.2 that it is highly impossible to identify a person who parks the vehicle for a short span of time in the parking lot. But he claims that if they fail to take back the vehicle for more than two days, they identifies such persons.

15. P.W.6, in his evidence, states that on 26.12.2006 accused Nos.1 and 2 had come to his shop on their motorcycle to have the number plates written for their motorcycle and accordingly, he prepared the number plate of the registration number KA02 U 5485. It is also his evidence that on 4.1.2007 accused Nos.1 and 2 had been brought near his shop and police enquired him whether he prepared the number plate and he confirmed the same.

In the cross-examination he states that accused Nos.1 and 2 had come to his shop at about 11 a.m. on 26.12.2006. It is suggested that accused Nos.1 and 2 have never approached him for preparing the number plate and the same was denied. In the cross-examination by the learned counsel appearing for accused No.2 it is suggested that accused Nos.1 and 2 were identified by him for the first time before the Court and that he is deposing falsely at the instance of police and the same was denied.

16. P.W.7 is a Store Manager in Woodland Shoes situated at Kankanadi, Mangalore. It is his evidence that accused Nos.1 and 2 had come to his stores on 25.12.2006 at 9.30 a.m. On that day they bought shoes and clothes from his stores valued at Rs.11,550/-. After purchasing them, gave the credit card of Citi Bank and the same was declined and hence he demanded cash from them, but they left the place stating that they would get the money from ATM, but they did not turn up. It is his further evidence that two weeks later accused Nos.1 and 2 came to his shop along with police. At that time their faces had been covered with mask. The police after showing accused Nos.1 and 2 asked whether he had seen them at any time in his shop. In response, he told the police that he had seen accused Nos.1 and 2. He identified accused Nos.1 and 2 at that time on the basis of their movements. Then he came to know that both of them have committed the murder. It is also his evidence that he was called to identify the accused persons on 15.2.2007 and he had been to Parappana Agrahara and identified both the accused persons in the presence of Taluka Executive Magistrate and the proceedings of test identification parade are marked as Exs.P1 and P2.

In the cross-examination he admits that he does not remember at that length of time as to what type and colour of clothes accused Nos.1 and 2 were wearing when they had come to his shop on 25.12.2006. Both of them were there in his shop for about 15 minutes. No other customers were present at that time. Further, except for himself and his assistants working in the shop none else were present in the shop at that time when the police had brought accused Nos.1 and 2. The police did not ask any of his assistants to identify accused Nos.1 and 2 at that time. He identified the accused only on the basis of their physical appearance, movements as their faces had been covered with mask. That on 15.2.2007 after he reached Bengaluru, he went to Mahadevapura police station and the said police took him to Central prison at Parappana Agrahara and from there to police station. At the police station, the Police Inspector told him that he should participate in the identification parade in order to identify the accused. It is suggested that he had seen the faces of the accused both in the newspaper and in the electronic media and the same was denied.

In the cross-examination of learned counsel for accused No.2 it is elicited that he cannot state in detail as to what are the types of shoes and clothes purchased by the customers who come to his shop. He cannot also state the physical features and facial features of the customers who come to his shop. His assistants in the shop deal with the customers and sometimes he also does. If any customers goes directly to his assistants in the shop it will be difficult for him to identify them on the basis of their physical features or movements. It is also elicited that at such length of time, he cannot state the body features of the persons who were standing at serial Nos.1 and 18 in the identification parade.

17. P.W.9 is the father of the deceased. He identified the belongings of his son when he was called to the Mahadevapura police station. At that time, the police revealed that they have arrested two persons by name Raju and Venkatesh in connection with the murder of his son. They also showed a torch cum screw driver, pan card, Sony Ericson mobile, a gold ring containing yellow stone, HDFC bank cheque book, a brown leather purse, identity cards issued by I-2 company, xerox copies of the registration certificate and other connected papers of Martiz Car, a wrist watch, a Martiz car and driving licence of his deceased son. On seeing those articles he identified them as the same belonging to his deceased son. His daughter-in-law also identified the same in the police station.

In the cross-examination it is elicited that he has not produced any receipts or bill to show that he had purchased M.O.2. It is suggested that he has identified M.Os.2 to 17 before the Court for the first time and the same was denied.

18. P.W.10 is the father-in-law of the deceased.

He states he came to know that his son-in-law was missing and his mobile was not reachable and thereafter, he came to know that he was murdered.

19. P.W.11 is the banker in HSBC. In his evidence he states that on 23.12.2006 police had come to their bank with a requisition to furnish the details of the Savings Bank account held by the deceased. In response to the same, he has furnished the details of the transactions taken place on 21.12.2006 and 22.12.2006 and he issued the letter in terms of Ex.P3, which bears his signature as per Ex.P3(a). Deceased was also holding a credit card account in their bank and he had mentioned that a total transaction of Rs.27,000/- had taken place in respect of the credit card account maintained by the deceased on 21.12.2006 and 22.12.2006.

In the cross-examination it is suggested that for the first time, before the Court, on going through Ex.P3 he has deposed that credit card transaction have taken place on 22.12.2006 and the same was denied.

20. P.W.12 is the Assistant Vice President of Citi Bank. In his evidence he states that on the request of the police he has furnished the details of the account held by the deceased vide his letter dated 22.1.2007 which is marked as Ex.P4. In Ex.P4 he has mentioned that on 23.12.2006 the account of deceased maintained in their bank has been operated through ATM thrice.

In the cross-examination it is suggested that in terms of Ex.P4 he does not know as to what was the exact amount that has been transacted in respect of the account maintained by the deceased in their bank on 23.12.2006 and the said suggestion was denied. However, he admits that Ex.P4 does not bear his signature. It is suggested that since he has not signed he does not know what has transpired under Ex.P4 and the same was denied.

21. P.W.15 is the cashier in petrol bunk. In his evidence he states that on 22.12.2006 the accused had come to their petrol pump and got filled the petrol worth Rs.300/-. The accused produced credit card towards the cost and on swiping the card given by the accused in the machine maintained in the pump, after retaining the copy of the receipt he gave back the card to the accused. About 10 to 12 days later police brought two persons to their petrol pump with masks on their face. The police asked whether they can identify and he told that he cannot identify the said persons since they had been covered with mask. He received a notice from the police to identify the accused persons and accordingly, he went to central prison on 15.2.2007 and the Taluka Executive Magistrate told him that he has to identify the accused. About 10 to 15 persons were made to stand in a line and he identified the persons at Sl.Nos.3 and 8 as accused Nos.2 and 1 respectively, who had come to their petrol pump. He has signed the test identification parade Ex.P6. He also identified the accused before the Court.

In the cross-examination he admits that there are four pumps which are used for delivering petrol and nine pumps used for delivering diesel to the vehicles. Since many customers come to their petrol bunk he is not able to definitely say which customer had come to their petrol pump on which day and had got how much of fuel filled up to his vehicle. He is not acquainted with the accused, but had seen them in their petrol bunk on the day they had come for filling the petrol to their motorcycle. He cannot say the type of motorcycle in which the accused had come to their petrol pump. He also cannot say which of the accused came riding the motorcycle to their pump. He also cannot say which of the accused tendered the credit card for being swiped towards the cost of petrol. When the police had brought two persons with masks to their petrol pump, at that time they had not shown him the said persons by opening the mask. It is suggested that the Taluka Executive Magistrate had disclosed him the names of the accused and their position in the line before asking him to identify the accused in the test identification parade and the same was denied. He cannot say at this length of time all the physical features of the persons who had been made to stand in the test identification parade. He also admits that the persons who were made to stand in line in the test identification parade did not have similar features.

22. P.W.17, in his evidence, states that he was working as Security Officer at Genesis Software Company situated at EPIP area, Bengaluru. He states that he has seen accused No.2 who is present before the Court. He was working as Security Guard in the reception of their company till the middle of December 2006. He was terminated from their company somewhere in the middle of December 2006 since there was a complaint lodged against him at Mahadevpura police in connection of his affair with a girl. That on 11.1.2007 in the evening around 7.30 p.m. the Mahadevapura police had come to the office, at that time, they had brought two persons with their faces covered with mask. He was enquired by the police and in response to the same, he told the police that they would keep a pepper spray tin, a lathi, a metal detector and a baton for their protection. They asked him to show the same. Accordingly, they showed the same to the police which were with the persons who are on duty except for a pepper spray tin. When the police enquired about the same, he told them that it might have been either taken by the Field Officer or Area Manager of their Company. The police opened the mask of accused No.1 and asked him whether he knows him and he replied in the negative. Thereafter, they opened the mask of accused No.2 and he replied that he knew him and that he was working as security guard in their company till 10.12.2006. He can identify the pepper tin which had been given to them in their company for self protection. He identifies M.O.36 as the same that had been given to them for their self protection in their company.

In the cross-examination it is elicited that in their security office always either the Security Officer, Supervisor or a guard would be present. It is suggested that whenever there is a shift change of the Security Guards and the supervisors they would hand over the self protection implements given o them and he denies the same. However, he volunteers that the same would be kept in the cupboard of the security office. It is suggested that accused No.2 had not turned up to their Company after he was terminated from his service at any point of time and he is falsely deposing before the Court at the instance of police and the same was denied. He also admits that pepper spray tin of the type of M.O.36 is available in the open market. There are no marks on M.O.36 to show that it belongs to their Company. He further admits that no article belonging to the Company would be allowed to be taken out of the Company gate without permission of the Company including employees of the Company.

23. P.W.18, in his evidence, states that he was working as Security Guard at Genenis Software Company situated at Whitefield. He knew and also had seen accused No.2 in this case as he was working as Receptionist Guard during the year 2006 in Genesis Software Company. He was terminated during December 2006 as he was involved in the case registered by Mahadevapura police. Accused No.2 came to their Company two days after he was terminated from his services from the Company. At that time, he was working in the gate of their Company. Accused No.2 sat in the security office. Thereafter, he asked him that he intend to meet P.W.17. In response to the same, he told accused No.2 that as P.W.17 would be coming late for his duty he can wait. Thereafter, accused No.2 sat in the office waiting for P.W.17. Thereafter, a water tanker came to their Company. He went to take the same. Accused No.2 left the office saying that arrival of P.W.17 may be delayed. About a week later, police came their Company along with accused No.2. At that time, on their enquiry as to the missing of any pepper spray tin from their company, he told the police that he has not seen accused No.2 taking any paper spray tin from their Company, but one of the pepper spray tin kept in the security office has been found missing. Prior to the arrival of the police along with accused No.2 they had no knowledge of one of the two pepper spray tins missing which were kept in the security office. He was subjected to cross-examination.

In the cross-examination he states that he had stated before the police that about 2 to 3 days after accused No.2 was terminated from services on 10.12.2006 he had come to their security room, at that time, he sat in the Security Receptionist Chamber. It is suggested that after they came to know about one of the pepper spray tins missing from the security office, accused No.2 had been brought by the police to their office and that he has deposed falsely vice-versa and the same was denied. It is suggested that accused No.2 had not come near their Company at any time after his termination of services and also he had not seen him near the Company and that he is deposing falsely, but the same was denied.

24. P.W.19, in his evidence, states that he had seen the accused present before the Court. On 30.12.2006 he had been summoned to act as pancha and in that connection he went to Mahadevapura police station. Police seized one laptop, one Nokia mobile, one steel button knife and a purse in which cash of Rs.26,000/- and odd was found and a spray type tin which were with the accused in terms of mahazar Ex.P9. After about 20 to 25 days of drawing of Ex.P9, he was again summoned to the police station to act as pancha. The police seized one yellow T-shirt and a blue coloured shirt belonging to the accused on that day in terms of mahazar Ex.P10. He identifies M.Os.41 and 42. He does not know about anything else in the case. He was treated as hostile.

In the cross-examination it is suggested that he was called to police station on 3.1.2007 and on that day accused were present in the police station. The accused led him and the police to the wet land of one Rama Reddy situated on Varthur-Panathur road. There the accused produced them M.Os.41 and 42 and the same were seized in terms of Ex.P11. It bears his signature as per Ex.P11(a). The same were seized at the spot and not at the police station as deposed by him earlier.

In the cross-examination by the learned counsel for accused No.2, it is elicited that he had not been served with any notice to act as pancha on 30.12.2006, 3.1.2007 and 27.1.2007. He admits that on 30.12.2006 police took his signatures at three places. He does not know the contents and he also cannot give the denominations of the cash M.O.45. It is elicited that on 3.1.2007 apart from the police and the accused, a person by name Manjunatha was also present in the police station and nobody else were present. The spot where Ex.P11 was drawn is at a distance of about 13-14 kms from Mahadevapura police station. They left the police station on 3.1.2007 at about 11 a.m. He does not know at what time they reached the spot. But he again states that within about half an hour or 45 minutes they reached the spot. The police had not secured the owner of the said land. At the spot of Ex.P11, the police took the two shirts seized under the mahazar. Himself, police and Manjunatha were the only persons who went to the place from where the two shirts were taken in the said land. The police took his signature on the mahazar Ex.P11, after they returned to the police station. There are no specific marks on M.Os.41 and 42. It is suggested that he had not been summoned to the police station on 3.1.2007 and he had not gone to the spot where Ex.P11 was drawn and the said suggestion was denied.

25. P.W.21 is the wife of the deceased. In her evidence, she states that her husband did not come to the house and hence, she contacted the office and got confirmed that he has left the office. Thereafter, she contacted one of the colleague of his husband and requested him to come to her place to go in search of her husband but, she could not trace. Hence, she decided to go to the police station to file a missing complaint and gave missing complaint in terms of Ex.P13. Next morning i.e., on 22.11.20006, at about 8.30 or 9.00 a.m., she was called to the police station and came to know that her husband was murdered and she identified the dead body of her husband. P.W.9, her father-in-law also arrived to the police station at about 4.00 p.m. Thereafter, steps were taken to cremate the dead body of the deceased. She was summoned again on 16.01.2007. She identifies M.Os.3 to 6, 8, 17, 33, 37 and 38 that all belongs to her husband. She was subjected to cross examination.

In the cross examination, it is suggested that she has produced those material objects only for the purpose of investigation and the same was denied.

26. P.W.22 in his evidence states that he has seen the accused before the Court. The accused had come to his shop about three years ago on a motor cycle. He bought Nokia mobile of the model No.2310 by paying a sum of Rs.3,315/- and he made the payment through HSBC Credit card. He cannot give the said credit card number. The payment was accepted by slashing the card in the machine and he handed over the mobile phone with bill. It is also his evidence that, about two days after, he sold Nokia Mobile model No.2310 to the accused. The police had come to his shop with two persons with their faces covered with mask. The police on removing the mask which were covered on the faces of the said two persons, enquired with him, whether they had purchased any mobile phone from the shop. On seeing the said two persons, he identified them as accused and told the police that they had purchased the Nokia mobile model No.2310 by using HSBC credit card. At that time, he produced before the police the charge slip and copy of the bill which he had prepared in his shop which is marked as Ex.P14. He also produced the photocopy of the payment slip made by the accused through HSBC credit card which is marked as Ex.P15. Apart from Ex.P14, he also produced before the police the original copy of Ex.P14 maintained in his shop which is marked as Ex.P16. The original of Ex.P15 is marked as Ex.P17. He also identifies the Nokia mobile phone model No.2310 which he sold to the accused as M.O.39.

In the cross examination, he admits that he cannot say who are all the customers, who had come to his shop for purchasing the mobile phones. It is suggested that the police on bringing the accused to his shop and opening the mask they told him that they had purchased the mobile from his shop and on that basis, he is saying that accused had purchased the mobile from the shop, the same was denied. It is suggested that accused had not come to his shop at any point of time and purchased M.O.39-Nokia mobile phone and the same was denied.

27. P.W.23 in his evidence states that on 23.12.2006, when he was in the lodge, the accused came at about 4.10 p.m. and sought for a room. Thereafter, he enquired with the accused as to how many persons are there and from which place they have come from and also enquired their names. In response to the same, accused No.2 revealed his name as Shankar and they have come from Chittoor in Andhra Pradesh. Thereafter, he revealed to the accused the tariff rates and allotted the room to the accused. On the next day, the accused have vacated the room before he reaching the lodge at 9.00 a.m. After ten to twelve days later, Bengaluru police brought two persons to his lodge and he identified the said two persons, who are accused Nos.1 and 2. The police also verified relevant entries in the register and the cash book which are marked as Exs.P18 to P20. Thereafter, on 15.02.2007, he received a Requisition to appear before the Taluka Executive Magistrate to identify the accused at the Central Prison. Accordingly, he went to the Central Prison. The Taluka Executive Magistrate, who was in the jail asked him to identify the accused among twenty five to thirty people, who were made to stand in a line. He identified accused Nos.1 and 2 at serial Nos.7 and 18. He was subjected to cross examination.

In the cross examination, he admits that in the register maintained in the lodge, they have not specified which rooms are A.C., luxury or otherwise. It is suggested that the signatures that are now shown to him in the lodge register and the cash receipt book are not one and the same and the same was denied. Whenever any customer comes to the lodge, they give room only on being satisfied with their address proof, if not, they would not give any room. He cannot identify all the customers, who come to their lodge. It is suggested that accused had not come to their lodge on 23.12.2006 and not taken any room and the said suggestion was denied. It is his evidence that on 15.02.2007, when he was taken inside the jail, the police, who had brought the two persons to their lodge were also present. Except the Taluka Executive Magistrate, nobody else was present. The Taluka Executive Magistrate made enquiries with him and asked him to identify the persons, who had come to his lodge among the persons, whom he had made to stand in line. The persons who were made to stand in the line were of different features and were wearing different coloured clothes.

28. P.W.25, the Driver in his evidence states that Investigating Officer took him and the accused persons from the police station in a vehicle to Dharmasthala. After reaching Dharmasthala, the accused led them to Sharavathi lodge and told that they had stayed in the said lodge and mahazar was drawn in terms of Ex.P23. Thereafter, the accused took them to Mangaluru. The accused had revealed that they could not draw money by using the card, since the machine at the said centre had been blocked, mahazar to that effect was drawn in terms of Ex.P24. The accused thereafter led them to Woodlands Showroom at Mangaluru. The accused revealed that they had purchased shoes and clothes and gave a credit card and the same did not respond. To that effect, mahazar was drawn in terms of Ex.P25. Thereafter, they returned back from Mangaluru to Bengaluru and while coming from Mangaluru in the Highway, the accused took them near Kamath Restaurant and they pointed out a place where they had thrown the credit card and ATM card, after tearing the same. They searched the same, but nothing was traced and mahazar was drawn in terms of Ex.P26.

In the cross examination, he admits that he does not know and also was not acquainted with the Investigating Officer in the case prior to 07.01.2007. The Investigating Officer did not take signature of any of the local residents at the place where Ex.P26 was drawn up.

29. P.W.26 in his evidence states that he had gone to police stating along with C.W.50 and accused was also present in the police station. Thereafter, the police took the accused and all of us near Hebbal Fly Over. Accused No.1 took us to Bhadrappa Extension and at the said place from a cow dung pit, he removed a knife and produced the same. The police seized the same under mahazar Ex.P27. Thereafter, the police took us near the pipeline road behind Marappa Kalyana Mantapa at Yeshwanthapur and police have seized the Martiz car by drawing the mahazar Ex.P28.

In the cross examination, he admits that he does not know whether the police took signature of the Manager or any other persons of Yatri Lodge on Ex.P29. It is suggested that he had not been summoned to act as Pancha and did not take to Bhadrappa Layout near Hebbal Fly over and the same was denied.

30. P.W.28, Scientific Officer, Forensic Science Laboratory office in his evidence states that he went to the spot at the request of the Investigating Officer along with his colleagues and got the photographs of the said place where the dead body was lying and those photographs are marked as M.Os.46 to 63 and M.Os.72 and 73. After taking the photographs, he prepared a rough sketch of the scene of occurrence in terms of Ex.P30. Thereafter, he collected the materials from the scene of occurrence which are nine in number and handed over the articles to the Investigating Officer, who was present at the spot. That on 26.12.2006, he went to Yeshwanthapura police station and also verified the finger prints on Martiz gray coloured car and he collected 17 articles. After examining the said articles, he gave the report in terms of Ex.P31.

In the cross-examination of P.W.28, it is suggested that he did not visit the scene of occurrence and also not taken any photos and not collected any articles, much less, MO.64 to 69 and 74 to 76 and the same was denied. It is further suggested that he did not go to Yashwanthpura police station and seen any Martiz car at the said place and falsely deposing at the instance of police and the same is denied.

31. P.W.29 is the Taluka Executive Magistrate. In his evidence he states that he has received requisition to conduct test identification parade of accused Nos.1 and 2 at jail premises. He fixed the date as 15.02.2007 and issued notices to P.Ws.7,15, 16, 23 and C.Ws.19, 22 and 23 to appear for test identification parade. That on 15.02.2007, he went to prison and took steps to conduct test identification parade. The other inmates of the jail were also called and after securing accused Nos.1 and 2, they were made to stand in line. Among the said persons, he positioned accused Nos.1 and 2 at serial Nos.7 and 14. The witness P.W.22 had been made to sit along with other witnesses in a separate room in the jail. He called him to identify the accused. P.W.22 after observing all the said persons pointed out accused No.1 only, who was positioned at Sl.No.14. He prepared the proceedings in terms of Ex.P6(d). Thereafter, accused Nos.1, 2 and 16 others were secured. He made them to stand in a line and positioned accused No.1 and 2 at Sl.Nos.9 and 17. He secured P.W.16 and asked to identify the accused. He identified both accused Nos.1 and 2. Accordingly, he drawn the mahazar in terms of Ex.P6(b). He also called C.W.23 and asked him to identify the accused and he identified both accused Nos.1 and 2 as at Sl.Nos.4 and 10 and drawn the proceedings as per Ex.P6(i) in his presence and he obtained his signatures as per Exs.P6(j) and (k). He also secured P.W.19 and asked him to identify the accused among other persons who had been positioned at Sl.No.8. He identified accused No.1. Accordingly, he drew up the proceedings as per Ex.P6(L). His signatures are as per Exs.P6(m) and (n). P.W.23 identified both the accused and accordingly, mahazar was drawn in terms of Ex.P6(o). He secured P.W.7 and directed him to identify the accused and he identified both the accused and the mahazar was drawn in terms of Exs.P1 and P2 which bears his signatures as per Exs.P1(b) and P2(b) respectively. P.W.15 also, seeing the accused persons in the line, identified only accused No.1 and he has drawn the mahazar in terms of Ex.P6(r) and P6(s). After completing the test identification parade, he handed over the accused to the custody of Jail Superintendent and gave the report.

In the cross-examination, he admits that when he went to jail, police were not present. He identified the witnesses on the basis of the notice issued by him and served on them. Except the notices, he did not get any documents verified to identify the witnesses. He was getting the dresses of the persons whom he was making to stand in the line along with the accused changed with dresses which they were wearing. He has not mentioned the colour and type of the dress which were worn by the persons who were made to stand in the test identification parade. It is suggested that he did not direct any notices to P.Ws.7, 15, 16, 23 and C.Ws.19, 22 and 23 to appear for the test identification parade and the same was denied.

32. P.W.30, in his evidence, states that he was summoned to act as pancha and accordingly, he went to Mahadevapura Police Station. At that time, C.W.47 and accused Nos.1 and 2 were also present in the Police Station. The Police took them to Kolar and they reached Kolar by 1.00 p.m. and thereafter, the Investigating Officer took them to a lodge. He does not know what had transpired at the said lodge. The police have drawn the mahazar as per Ex.P32 and he has attested the same. He does not know the contents of Ex.P32. Again on 05.01.2007, he was summoned to the Police Station to act as pancha. At that time, C.W.47 and the police were present at the Police Station. He does not know who else were present. But again he says that accused were in the Police Station. Thereafter, Investigating Officer took them near Shivashakthi petrol pump situated at Whitefield in Bengaluru. Investigating Officer collected some copies of the bill for having purchased petrol. He prepared panchanama in terms of Ex.P33. After mahazar he does not know what transpired thereafter on 5.1.2007. He does not know the accused taking him and the police to Cell Tech Mobile Solution shop situated at Koramangala, Mangaldeep Electronics and Home Appliances shop situated at C.T. Road, Marathahalli and to different shops and drawn the mahazar in terms of Exs.P34 to 38 respectively and he identifies his signature as per Exs.P34(a) to P38(a) respectively. That on 12.01.2007, he had been summoned to the Mahadevapura Police Station to act as pancha. On that day also C.W.47 and the police were present at the police station. The police seized the banner under the Panchanama Ex.P39 and it bears his signature Ex.P39(a). This witness was treated as hostile and cross examined by the learned Public Prosecutor.

In the cross-examination, a suggestion was made that in his presence only the accused revealed that they had stayed in a lodge at Kolar after committing the offence and the same is denied. It is elicited that thereafter, accused took them to Shivashakthi Petrol Pump and then to different shops.

33. P.W.31, in his evidence, states that on 03.01.2007, he had been summoned to Police Station to act as pancha. At that time P.W.30, the accused and the Police were present. They had left Mahadevapura Police Station to Kolar and reached Kolar and accused led them to Anjanadri lodge. The Investigating Officer perused the registers and made endorsement and drawn the mahazar in terms of Ex.P.32. Again on 05.01.2007, he was summoned to act as pancha to the Police Station. Accused took them to Shivashakthi Petrol Pump and Investigating Officer has collected the bill for having filled the petrol and drawn the mahazar in terms of Ex.P33. Thereafter they went to Koramangala and accused took them to Cell Tech mobile shop and Investigating Officer drawn the mahazar in terms of Ex.P.34 and also seized the bill and the same is marked as Ex.P41. The accused also took them to Mangaldeep Mobile Shop where they had purchased a mobile and the Investigating Officer drawn the mahazar in terms of Ex.P35. The accused also took them to an Optical shop and revealed that they had purchased two sets of cooling glasses and the owner of the shop also informed that two sets of cooling glasses were purchased and mahazar was drawn in terms of Ex.P36. Accused also brought them to a Chinese restaurant and revealed that they had food there and mahazar was drawn in terms of Ex.P37 and he also identifies the bills as Exs.P42 and P 43. The accused also took them to Classic Polo cloth shop where they had purchased clothes and mahazar was drawn in terms of Exs.P37 and P38. The bills are marked as Exs.P44 and 45. Again on 07.01.2007, he was summoned to the Police Station and he went along with the accused to Dharmasthala. They also secured P.W.25 and accused were also present in the police station. Thereafter, all of us left to Dharmasthala and accused took them near Sharavathi Lodge and pointed out a place where they had slept and mahazar was drawn in terms of Ex.P23. Further, they went to Mangaluru and accused took them to a ATM counter and they revealed that they tried to draw the amount with the help of a credit card but they were not successful and mahazar was drawn in terms of Ex.P24. The accused also took them to a cloth shop and showed the place where they had purchased the clothes and mahazar was drawn in terms of Ex.P25. Thereafter, they left Mangaluru to Bengaluru. When they were on the Highway nearing Hassan, the accused stopped the vehicle and revealed that they have thrown the torn ATM card. The same was searched but, nothing was traced. Mahazar to that effect was drawn in terms of Ex.P26. That again on 10.01.2007, the police called him to the police station to act as pancha. On that day, P.W.30 and accused were there in the police station. The police have seized a banner under the mahazar Ex.P39 containing the photo of accused No.1 along with political leaders and identifies his signature as at Ex.P39(a). He was subjected to cross examination.

In the cross examination, he states that Investigating Officer has not recorded his statement in connection with the case and he had not been issued any notice in writing to act as pancha. He is a Driver by profession. He cannot give the boundaries of Anjanadri Lodge situate at Kolar. The Investigating Officer did not take the signature of the Supervisor or the Manager of the Sharavathi lodge. The Investigating Officer had not secured the local residents to act as pancha where Ex.P26 was drawn up.

34. P.W.33 in his evidence states that, accused No.1 was working as Security. He had purchased a SIM card and none of his family members were interested to take the SIM card. As such, he has given the same to accused No.1. On 29.12.2006, the police came to his house enquiring him and he took the police to the house of accused No.1 and showed him.

In the cross examination, it is elicited that, accused- Raju used to telephone him from the SIM card. It is elicited in the cross examination of learned counsel for the accused that police took accused-Raju to the police station with them. The police did not record the statement on 29.12.2006.

35. P.W.34 is the Assistant Engineer, K.R.Circle, Bengaluru. In his evidence he states that he visited the spot and drew up a rough sketch at the spot and thereafter, prepared the regular sketch in terms of Ex.P51.

36. P.W.35 in his evidence states that he inspected two motor vehicles and gave the report in terms of Ex.P52.

37. P.W.36 in his evidence states that in the police station, the police have seized the articles shown to him i.e., M.Os.5, 36, 37, 38-brown colour leather purse with cash of Rs.26,650/-, 39, 40, 43, 44 and cash of Rs.1,920 which is marked as M.O.45.

In the cross examination by learned counsel for accused No.1, it is elicited that material objects were produced by both the accused. But, now he cannot distinctly say as to who produced which article. When he went inside the police station, all the material objects were on the table. The police did not ask him to identify as to which of the articles are produced by accused Nos.1 and 2 separately. He was not knowing the accused earlier to he seeing them in the police station. He has not affixed his signature on the material objects seized on that day.

38. P.W.37 is the complainant. In his evidence he states that on 22.12.2006 at 6.45 a.m. his friend C.W.37- Manjunath telephoned him that on the road from Garudachar Palya to Goshale Road, one dead body is found lying. On getting such information, he went to the spot and noticed that a dead body of male person was lying. The hands of the dead body was tied together with a veil, body was having pant and shirt. One shoe was also there but, another shoe was found on the tank bund near the dead body. Thereafter, he went to the police station and lodged the complaint at about 8.00 a.m. which is marked as Ex.P55. On receiving the complaint, the police came to spot with Dog Squad, Finger Print Experts were also secured by the police and drew the spot mahazar. Thereafter, shifted the dead body in the ambulance. He also affixed his signature to spot mahazar Ex.P56 as Ex.P56(a). That on 30.12.2006, he came to know that police have apprehended the accused persons. Both the accused led himself, Investigating Officer and another witness C.W.40 to a place near Vaidehi Hospital and showed the spot where mahazar was drawn in terms of Ex.P49. That on 01.01.2007, police took him along with the accused to Varthur and accused No.1. led all of them to his house at Varthur. From there, he produced one Hero Honda motorbike, two shirts, one pant, one mobile, one purse, one bag with a zip and a cooling glass. The police seized all the articles and the motorbike and drew a mahazar. The police also seized a chit containing the ATM card number as ‘1002’ of the deceased. He identifies those articles as M.Os.79 to 83 and so also identity card of the accused No.1. He also identifies M.O.3 and states that it was the photo of the victim. Identity card of accused No.1 is marked as M.O.84. The mahazar for having seized the said articles is marked as Ex.P46 and his signature is marked as Ex.P46(b). On the same day at 3.30 p.m., the accused led them to Varthur to the house of one M. Narayanappa and showed one maruthi van and the same was seized by drawing the mahazar in terms of Ex.P47 and identifies his signature as Ex.P47(b). It is also his evidence that on 02.01.2007, accused No.2 led us to his house at Nagondanahalli. From his house, he produced one cooling glass, one sony ericson mobile, one cellophane-gum tape, slip containing the code number of the ATM card of the victim. M.Os.34 and 4, the cooling glass and the mobile are the articles so produced. The cellophane-gum tape is marked as M.O85. A mahazar was drawn in terms of Ex.P48 and his signature as Ex.P48(b), In the cross examination, it is elicited that police did not ask him to lodge the complaint, but on his own as a responsible person, lodged the complaint since, he has seen the dead body. He did not receive any written notice from the police to act as pancha. He does not have any relationship with the police. When both the accused were inside the police station on 30.12.2006, no face mask was put on them, but when they brought out from the police station, the police have put mask on their faces. Even on 01.01.2007, both the accused were there in the police station and he went in his own car with the Driver following the police vehicle to Varthur. He does not know, who gave the directions to the Driver of the jeep of the Circle Inspector. Even on 02.01.2007, he followed the police jeep and he does not know who gave the directions to the Driver of the jeep.

39. P.W.38, Retired Assistant Commissioner of Police, CCB in his evidence states that on 22.12.2006, the Joint Commissioner of Crimes constituted four teams to trace the accused and he was in-charge of one of such team. On 22.12.2006, they met the wife of the deceased and collected information with regard to credit cards and bank cards which the deceased was having with him and learnt that the deceased had accounts with HSBC and HDFC banks and held ATM card facility to draw the amount from the said banks. He also had ATM card of Citi Bank. They have received information that by making use of the said cards, someone else have purchased mobile phones from Mangaldeep Electronics at Marthahalli and Cell Tech at Koramangala and he obtained the details of purchase of said mobile phones. On further investigation, they learnt that one of the said mobile phone was made use around the area/vicinity of Varthur. Thereafter, he set up a team of informants and deputed them in and around Varthur. That on 30.12.2006 at about 10.30 a.m., the informants told him that they have some information and asked him to go to Varthur. Accordingly, he proceeded along with the team to Varthur and met informant and he showed accused Nos.1 and 2, who were near Prashanthi Nilaya at Saibaba Ashrama and informed that the accused persons are the persons who are involved in the offence and thereafter, both of them were apprehended and they revealed their identity. He also states that precautionary measure was taken to conduct search on the person of both of them. Accused No.1 was carrying a laptop in the handbag and cable of the said laptop. He also had cellophane gum tape with him. He also had a brown valet in his pant pocket which contained Rs.26,650/-. He was wearing one gold ring on his right finger. On search of accused No.2, in one of his pant pocket , he was having cobra pepper spray, in his another pocket, a button knife which was bloodstained and he also had a keychain with key and also had cash of Rs.1,920/-. On enquiry, they revealed that these articles belongs to the deceased. They also revealed that they had drawn the cash by making use of the ATM card of the deceased. He gave the report to Inspector with regard to the articles so found in terms of Ex.P57. Thereafter, the Inspector secured the panch witnesses and dreew the mahazar and seized the articles which were found with accused Nos.1 and 2 in terms of Ex.P9. Those articles are identified as M.Os.5, 36, 37, 38, 39, 40, 43, 44 and 45. He also states that he has collected the information from HSBC bank in terms of Ex.P3.

In the cross examination it is elicited that, he did not investigate with regard to the phones of the wife of the victim and the victim. He did not investigate in relation to the phone number of the victim. It is elicited that he learnt that the said mobile phone number stood in the name of Balakrishna of Varthur. He learnt about the use of the said SIM card by Balakrishna and his address on 23.12.2006. He does not know anything about involvement of the Balakrishna. It is suggested that he went to the house of accused No.1 on 29.12.2006 along with the said Balakrishna and the same was denied. However, he volunteers that he did not enquire Balakrishna, since the accused may escape. He did not make any efforts to apprehend Balakrishna till he was definite about his involvement. He did not draw any mahazar at the place where he apprehended the accused. He did not make list of the articles found on the person of accused Nos.1 and 2. It is suggested that he never traced accused Nos.1 and 2 and the same was denied.

40. P.W.39 is the Police Inspector and Finger Print Expert. In his evidence he states that on receipt of the directions from Control Room on 25.12.2006, he proceeded to Yeshwanthapura police station and he was taken to the place where Martiz car was abandoned. He examined the car and traced three finger prints on the rear view mirror and on the globe gum tape and noticed two palm prints and marked the said prints as ‘A’, ‘B’, ‘C’ and ‘P’ and ‘P1’ respectively. He did not trace any prints on other objects like plastic cards and iron rod. He issued certificate on the same day as scene of crime certificate. Subsequently on 10.01.2007, Mahadevapura police sent finger print slips, palm prints and sole prints of accused Nos.1 and 2 to compare the same with the prints taken from the car. Accordingly, he compared the said prints with that of one already taken. On comparison, the finger print did not tally with either of the two persons. Whereas the palm print marked as ‘P’ tallied with the right palm prints of B.Y. Venkatesh and the said print was marked as ‘S’. ‘P1’ tallied with the left palm print of accused No.1 and the same tallied print was marked as ‘S1’. Accordingly, he issued the certificate on 16.01.2007 in terms of Ex.P58. He also submitted the grounds for opinion and also ‘P’, ‘S’, ‘P1’ and ‘S1’ which report is marked as Exs.P60 and 61.

The palm prints on the cellophane gum tape which he found is marked as ‘P’ and ‘P1’ and the said tape is marked as M.O.86. This witness was not subjected to cross examination.

41. P.W.40, Head Constable in his evidence states that he was in-charge of the police station in the night at 4.00 a.m. that is on the intervening night of 21.12.2006 and 22.12.2006. The wife of the deceased appeared and told that her husband had not returned home. On receipt of such complaint, he registered a missing complaint and informed the same to Control Room to intimate all the police station. The said complaint is marked as Ex.P13.

42. P.W.41 in his evidence states that he has furnished the call details of the mobile No.’9845168610’ for the period from 26.12.2006 to 30.12.2006 in terms of Ex.P64.

In the cross examination it is suggested that, there are innumerable complaint lodged with regard to the call details in their office and the same was denied.

43. P.W.42 is the Assistant Professor in Forensic Department at BMC-RI attached to Victoria Hospital. He states that he conducted autopsy over the dead body and he noticed eight injuries. On dissection of the body, there was extravasation of blood present over an area of 8 cms. x 2 cms., on right side of neck into the muscles. All the injuries are ante-mortem and fresh in nature. He also states that blood sample was collected and sent to Forensic Science Laboratory for presence of alcohol. It is also opined that death is due to asphyxia as a result of compression over nose, mouth and chest. Thereafter, he issued post mortem report in terms of Ex.P66. He also received the sealed packet from the Investigating Officer, including the knife with metal handle. On examination, he gave the opinion that stab wound mentioned in the post mortem report could have been caused by the type of knife examined. The gum tape examined could have been used to close the mouth and nostrils, as to the hands and legs. The cotton rope examined could have been used to tie hands and legs. The opinion is marked as Ex.P68. M.O.70, the knife, M.O.76, the cotton rope, M.O.68, cotton cloth, M.O.75, gum tape pieces and M.O.74 gum tape are the articles shown and identified by him.

In the cross examination it is elicited that stab injury found on the carpus could be caused by use of any sharp edged weapon as suggested. He admits that he did not see any bloodstains on both the pieces of gum tape.

44. P.W.43 is treated as hostile and cross- examined by the public prosecutor. It is suggested that the accused on 03.01.2007 led them to Corporation Bank ATM Counter at K.G.F. and mahazar was drawn in terms of Ex.P70 and the same was denied.

45. P.W.44, Assistant Regional Transport Officer in his evidence states that he had furnished the details of the license pertaining to accused Nos.1 and 2 in terms of Exs.P73 and 74. Exs.P73 and P74 discloses that both of them held licenses to ride light motor vehicles and accused No.1 had license to drive cab also. This witness was not subjected to cross examination.

46. P.W.45, Scientific Officer working as Handwriting and Document Expert in Forensic Science Laboratory in his evidence states that, he had received certain documents with a list for examination and report which are three in number. He examined the said three documents and gave his opinion. The report furnished by him is marked as Ex.P75 and the reasoning is marked as Ex.P76. D1 is the enlarged print of the admitted signature. D3 to D7 are the disputed signatures.

In the cross examination, it is elicited that he also took the enlarged print of the admitted signature of the suspected person as well as the disputed signature. A1 to 10 shown to him are the admitted forged signatures of the deceased made by accused No.1. It is suggested that the disputed signature D2 differs from the admitted signatures A1 to A10 and the same was denied. He also produced the manuscript which is marked as Ex.P76(j).

47. P.W.46 is the Police Constable, who took the First Information Report and delivered the same to Court in terms of Ex.P55.

48. P.W.47, In-charge Scientific Officer, Forensic Science Laboratory in his evidence states that on 29.01.2007, he had received the articles from the Investigating Officer to give his opinion. He had assisted the Assistant Director while conducting the examination and on the same day, he took further examination for conducting Serology Test and gave his opinion that item Nos.1 to 13 and 20 were stained with human blood and item Nos.1 to 4, 10 to 13 were of ‘B’ group and the blood grouping of the bloodstains in item Nos.5 to 9 and 20 could not be determined. He was subject to the cross examination.

In the cross examination, it is deposed that without determining the original of bloodstains, blood grouping cannot be done. It is elicited that whatever observed, was not reduced into writing in his test report.

49. P.W.48 in his evidence states that, he was summoned to police station. Accused led them to the road leading to Varthur to the land of one Rama Reddy and from a bush, both of them took about two shirts and produced the same before the Investigating Officer. The police showed both the shirts to them, one shirt was of cream colour and another was of blue colour. Both the shirts were bloodstained. The police seized the said shirts and drew the mahazar in terms of Ex.P11. He also identifies the same as M.Os.42 and 41. The police again on 27.01.2007 summoned him to the police station to act as a witness and in their presence, the Investigating Officer seized 18 sealed items by drawing a mahazar in terms of Ex.P10.

In the cross examination, it is elicited that when both the accused were in jeep, they were not having any mask on their faces. He did not get down from the motorbike and enquired the driver of the jeep as to why the jeep was stopped. Nobody get down from the jeep at the said spot. It is also elicited that the distance between the bush from where the accused took out the shirts and where the jeep was stopped was about 100 to 150 feet. Though the bush was visible from the place where the jeep was stopped, the clothes were not visible, as the same were inside the bush. He did not speak to the accused. He did not witness the accused actually taking out the shirts and handing over the same to the Investigating Officer, as he himself and other panch witness, Prakash were little away talking to each other. It is suggested that he never witnessed any seizure of the clothes and he never participated in any mahazar as a witness and the same was denied.

50. P.W.49 is the Deputy Superintendent of Police, DCRE, Bagalkot, who conducted the entire investigation. In his evidence he states that P.W.37 appeared before him and lodged a complaint in terms of Ex.P55, on the basis of which a case was registered against unknown persons and first information report was submitted to the Court. He also states that P.W.21, the wife of the deceased had also lodged a missing complaint in terms of Ex.P13. He went to the spot and held spot mahazar in terms of Ex.P56 in the presence of P.Ws.37 and 48 as per Ex.P56. He also seized one shoe, one socks, one kerchief, a rope and one gum take which were fallen at the spot. On the same day, nobody identified the dead body of the deceased and he gave the information to Forensic Science Laboratory, Finger Print Experts and Dog Squad. Thereafter he went to the spot and verified the scene of occurrence. There was one yellow colour shirt, black colour pant, white colour banian, red colour underwear and grey colour socks were found on the dead body and there were blood stains found on the shirt. One shoe was lying at the distance. Finger Print Expert and Dog Squad also came to the spot and spot mahazar was drawn in the presence of M. Manjunath and complainant. During the inquest mahazar over the dead body of the deceased, he has incorporated the injuries that he noticed in terms of Ex.P22. He further states that P.W.28 also examined the scene of occurrence and list was prepared in terms of Ex.P58 and subjected to PF. He identified the seized articles before the Court. It was noticed that deceased was murdered after stopping his respiration by strangulation and dead body was sent to Victoria Hospital for post mortem examination. The wife of the deceased has stated that her husband went in a Martiz car bearing No.DL-3-CQ-2478. After collecting the information, formed three groups to trace the accused. P.W.9, the father of the deceased identified the dead body in the Victoria Hospital. During the investigation, he has recorded the statement of some of the witnesses. He visited the company in which the deceased was working on 24.12.2006. He also visited the house of the deceased on 25.12.2006 and got the information regarding bank accounts and credit cards of the deceased. On 26.12.2006, he has received wireless message that one car is at Yeshwanthapura police station jurisdiction and the said car was seized. He also collected some of the objects from the said car through the Forensic Science Laboratory, Scientific Officer. The articles were also seized which were inside the car, including the money of Rs.1,500/-. All the articles were given to him by the Forensic Science Laboratory Scientific Officer. The seized articles were subjected to P.F. The photographs in respect of the car marked as M.Os.11 to 16 are identified. The witness also identified other material objects.

51. It is also his evidence that he has collected all those articles, which were given to him by the FSL Officer and then by taking that car also he returned to the police station. Out of the gum tapes collected, he has sent one gum tape to FSL office for examination and report. The said gum tape is M.O.86. On the same day, he collected the post mortem report and also received the articles from the hospital authority in terms of Ex.P.84. Those articles were sealed packets and post mortem report. The report is marked as Ex.P.85 and his signature is Ex.P.85(a). He also identifies checks shirt as M.O.69, black colour pant as M.O.95, underwear as M.O.96, banian as M.O.97, one read colour thread, which was tied on the right hand of the deceased as M.Os.98 and 99, blood sample bottle as M.O.100. On the same day, P.C. brought and produced before him one gum cello tape role, which was given by the Finger Print Experts and the same was subjected to P.F. in terms of Ex.P.86. The report is marked as per Ex.P.87. The said gum tape role is marked as M.O.101.

52. On 27.12.2006, he has requested the Manager of HSBC Bank to give the information about the credit card of the deceased in terms of Ex.P.88. Then he has sent a requisition to the Manager of Citi Bank to give the information about the transactions of the deceased. The said letter is marked as per Ex.P.89. That on 28.12.2006, he recorded the statement of P.W.14, who is the friend of the deceased and also recorded the statement of P.W.3 – Ramakrishna Sharma, security of the Company. That on 30.12.2006, P.W.38 and his staff produced accused Nos.1 and 2 by giving the report in terms of Ex.P.57. He recorded the voluntary statements of accused Nos.1 and 2 as per Exs.P.90 and 91. He did the formalities before their arrest. He identifies the accused persons before the Court.

53. It is also his evidence that on the same day, he secured the panch witnesses – P.W.19, C.W.42 and P.W.36 and explained about the case and showed accused Nos.1 and 2 to the panch witnesses. He conducted personal search of accused No.1 and found one laptop of DELL Company and the wires which were used for the said laptop as M.Os.37 and 43, one leather purse containing cash of Rs.26,650/- - M.O.38, one gold ring having yellow stone – M.O.5 and one Nokia Company mobile – M.O.39. He conducted personal search of accused No.2 and found one cobra pepper spray – M.O.36, one button knife – M.O.40, one key bunch – M.O.44 and cash of Rs.1,920/- – M.O.45. He drew the mahazar in the presence of the panch witnesses and seized the articles found with accused Nos.1 and 2 as per Ex.P.9. He subjected the seized articles to P.F. Thereafter, he recorded the statements of P.W.38 and other witnesses. On 31.12.2006, he produced accused Nos.1 and 2 before the Court and obtained the police custody till 6.1.2007.

54. On 1.1.2007, the accused persons led the panch witnesses and him in the jeep to the residential house of one Nalini, the mother of accused No.1. Then accused No.1 asked to stop the jeep near the house and got down from the jeep and went inside the house and brought one bag. It contained one black coloured cooling glass, one Nokia mobile phone, one black coloured new pant, one full sleeves new shirt, grey coloured another shirt, one chit containing the secret ATM number of accused No.1, one I.D. card of accused No.1, one key bunch and one purse.

Accused No.1 informed that these articles were purchased using the credit card of the deceased. He seized those articles in the presence of the panch witnesses. Then accused No.1 showed one two wheeler vehicle and told that he had committed the theft of the said vehicle from HAL Police Station jurisdiction. Accused No.1 informed him that he has corrected the original number by altering it and putting another number. But he verified the engine and chassis number of the said vehicle. He took all those articles into his custody and put all those articles in the white cloth and put the seal with letter ‘MDP’ over it. The mahazar was drawn in terms of Ex.P.46. He identifies the articles M.Os.35, 79, 80, 81, 82 and 7. But the ATM secret code number 1002 and the slip containing the said number was not found in the file of the Court and the same was not returned from the FSL. He also identifies the I.D. card of the accused No.1 as M.O.84 and key bunch of the motorcycle as M.O.71 and the same was sent to HAL Police Station. He also had seen one blue coloured airbag – M.O.83 and subjected the articles to P.F.No.2/07.

55. The accused informed him that they will show and produce one Maruthi car, which was used for the commission of the offence. The accused took him and the panch witnesses to the house of one Narayanappa and they pointed out and showed one Maruthi car and told that they have used that Maruthi car just to show as if there is an accident with that car against the deceased. The accused informed that they got the car from P.W.4. Then he verified the number of the said car and seized it by drawing the mahazar in terms of Ex.P.47.

56. On 2.1.2007, again he secured P.Ws.32 and 37 to the Police Station and put the mask to accused Nos.1 and 2 and went to the house of accused No.2. Accused No.2 produced one black coloured cooling glass – M.O.34, one roll pack of brown gum tape – M.O.85, which was already used, one Sony Ericson Company mobile – M.O.4 and one slip containing ATM secret code number 1002. He has seized all these articles drawing mahazar in terms of Ex.P.48 and subjected the same to P.F. ATM secret code slip was not found in the Court file and he says that the same was not returned from the FSL.

57. On 3.1.2007, the panch witnesses – P.Ws.19 and 48 were secured and the accused led the panch witnesses saying that they are going to show the shirts which they wore at the time of incident and accordingly produced one yellow colour full sleeves shirts and one blue coloured full sleeves T-shirt. Accused No.2 told that he wore yellow coloured full sleeves shirt at the time of the incident. Accused No.1 told that he wore blue coloured full sleeves T-shirt at the time of the incident. Both the shirts were seized separately by conducting mahazar in terms of Ex.P.11. Both the shirts are marked as M.Os.41 and 42.

58. On the same day, he secured the panch witnesses –C.W.45 and P.W.43. Then they along with the accused went towards Kolar, Gottipura Karnataka Forest Area. The accused asked them to stop the vehicle. Accordingly the vehicle was stopped. Accused No.1 took out one plastic carry bag from the side of the road and produced before him and found one I.D. card of an employee on which employee No.56455 and name of the deceased was mentioned, one cheque book in the name of the deceased, one leather cover diary of the deceased, one I.D. card belonging to the accused No.1, on which it was written as Chalapathi Car Rental Service, driver name as Raju, driving licence of the deceased, PAN card of the deceased, invoice of Cell Tech Shop bearing No.9164 dated 22.12.2006 and bill bearing No.N-6270. He seized these articles by drawing the mahazar as per Ex.P.92. Then he came back to the Police Station and subjected the same to P.F. The I.D. card of the deceased is marked as M.O.102 and bank cheque book of HDFC Bank as M.O.6. He also identifies diary as M.O.103 and I.D. card with photo of accused No.1 as M.O.104, driving licence of the deceased as M.O.17, PAN card of the deceased as M.O.3 and invoice dated 22.12.2006 as Ex.P.93.

59. The accused Nos.1 and 2 gave the information about drawing the money at Kolar. They were taken to Kolar and showed the ATM of Corporation Bank. The accused No.1 told him that under the secret ATM code number of the deceased, he had drawn an amount of Rs.70,000/- and mahazar was drawn in terms of Ex.P.94. The accused gave further information to him that they have also drawn the amount at ATM counter at KGF. Then the accused took him and the panch witnesses to the Corporation Bank ATM counter at KGF and told that four times he withdrew the money using the secret code totaling to Rs.5,000/-. Then the mahazar was conducted in terms of Ex.P.95. He identifies the amount of Rs.26,650/- as M.O.38, an amount of Rs.1,920/- as M.O.45 and gold ring with yellow stone as M.O.5. He gave the requisition to the Bank ATM to furnish the details.

60. On 4.1.2007, he secured the panch witnesses – P.Ws.30 and 31. Accused Nos.1 and 2 told that they had stayed in the lodge at Kolar. The accused took them to the said lodge and thereafter he obtained the register of the lodge and recorded the statement of P.W.23 – room boy, who gave the room to the accused. The mahazar was drawn in terms of Ex.P.32, xerox copy of the bill as Ex.P.18, extracts of the register as Exs.P.19 and 20. The fictitious name of Shankar is at Sl.No.5 in Ex.P.19.

61. The accused Nos.1 and 2 took him and the panch witnesses – P.W.43 and C.W.44 to the parking yard in the bus stand at Kolar and showed the place where they had parked the two wheeler. Mahazar was drawn in terms of Ex.P.96 and signature of P.W.43 was marked at Ex.P.69. Then he recorded the statement of P.W.5, who was looking after the parking yard. He also recorded the statement of P.W.6.

62. On 5.1.2007, again he secured the panch witnesses – P.Ws.30 and 31. Accused informed that by using the credit card of the deceased, they made some purchases and if they were taken to that place, they will show and produce the said articles. Accordingly, they showed the petrol bunk, where they got filled petrol for Rs.300/-. The bill was collected and marked as Ex.P.40. Mahazar was drawn in terms of Ex.P.33. Accused No.1 states that amount was paid by swiping the credit card of the deceased and he signed the said bill. He recorded the statement of one Raghu – P.W.15.

63. The accused led him and the panch witnesses to the mobile shop situated at Koramangala. The accused informed that by swiping the credit card of the deceased, they purchased one mobile worth Rs.16,830/-. The same was explained to the owner and the owner also identified the accused and recorded the statement of the owner. The mahazar was drawn in terms of Ex.P.34. The credit bill was marked as Ex.P.41, which bears the signature of accused No.1 and the same was subjected to P.F. as per Ex.P.97. The accused also took them to Mangaldeep Electronics and accused No.1 gave the information about the purchase of mobile worth Rs.3,315/-. The bill contains the signature of accused No.1 and the same is marked as Ex.P.16. Accused No.1 also identifies his signature on Ex.P.16. Seizure mahazar is at Ex.P.35 and the other mahazar is at Ex.P.34 for the seizure of the bill from the mobile shop. Then both the accused took them to Jeevan Bheema Nagar for having purchased two cooling glasses in the Central Opticals. The same was seized by drawing the mahazar in terms of Ex.P7. It bears the signature of accused No.1. The receipt was seized under mahazar at Ex.P.36. He also recorded the statement of the owner of the said shop – P.W.16.

64. The accused took them towards Indiranagar, CMH Road nearby Madrine Hotel and told that they had food in the said hotel. Hence, they collected the bill and the accused No.1 identified his signature on the bill of the said hotel in the presence of the panch witnesses. The mahazar was drawn in terms of Ex.P.38. The receipt is marked as Ex.P.42, seized one slip for having used the credit card which bears the signature of accused No.1 and the said slip is marked as Ex.P.43. The accused also took them to another shop in CMH Road, Indiranagar for having purchased clothes worth of Rs.6,430/-. The accused No.1 identified his signature on the receipt and mahazar was drawn in terms of Ex.P.37, receipt is marked as Ex.P.44, credit card bill as Ex.P.45 and two cooling glasses were marked as M.Os.34 and 35.

65. On 7.1.2007, on the basis of the information given by the accused No.1, he secured the panch witnesses – P.Ws.31 and 25 to the police station. The accused informed that they made an attempt to draw the amount by using ATM at Dharmasthala. Hence, they along with the staff went to Dharmasthala. The accused showed the place where they slept in front of Sharavathi Lodge and mahazar was drawn in terms of Ex.P.23. Thereafter, the accused took them to Mangaluru and showed the place where they made an attempt to withdraw the money at Corporation Bank ATM by using the credit card but they did not get the money. They also informed that they made an attempt to purchase the articles at Karavaly Circle in Kolaso Building but they could not. Hence mahazar was drawn in terms of Ex.P.24. Then the accused led them to another place known as Brend Well Junction, where they purchased the shoes, clothes and other articles worth Rs.11,550/-. They tendered the card, but the same was not operating and hence mahazar was drawn in terms of Ex.P.25. The Investigating Officer also recorded the statement of P.W.7 – owner of the Woodland Show Room. Then they left Mangaluru. While coming to Bengaluru, when they reached near Kamat Hotel, the accused told that they tore the credit card and ATM card and thrown the same at a place which is at a distance of about 4 kms. from Kamat Hotel. The mahazar was conducted in terms of Ex.P.26. An attempt was made to trace the pieces of credit card and ATM card, but they were not able to get the same.

66. On 9.1.2007, accused No.2 gave the information that they threw the knife by the side of the Double Road near Bhadrappa Layout. Accordingly panch witnesses were secured and went to spot and the accused No.2 nearby Ring Road in a place like dung pit in between the railway track and the Ring Road Circle took out and produced one knife before him in the presence of panch witnesses stating that it is the knife, which was used to threaten and commit the murder of the deceased. Hence, the same was seized by drawing the mahazar in terms of Ex.P.27 and knife was marked as M.O.70. Then the accused Nos.1 and 2 told that after committing the murder, they left the car near the Kalyana Mantapa at Yeshwanthpura. The mahazar was conducted in the presence of the panch witnesses in terms of Ex.P.28. Accused told them that before proceeding to Dharmasthala, they stayed in one lodge by name Yatri Lodge at Majestic. The mahazar was conducted in terms of Ex.P.29. But on 10.1.2007, as the police custody got expired, produced the accused Nos.1 and 2 before the Court and got extension.

67. On 11.1.2007, accused Nos.1 and 2 told that they had committed the theft of motorcycle within HAL Police Station jurisdiction. The mahazar was drawn in terms of Ex.P.12. Then the accused No.2 gave the information that he was working in Zenesis Software Company as security and he took one pepper spray from that place. Then they visited Zenesis Software Company along with panch witnesses and drew the mahazar in terms of Ex.P.98 and also recorded the statement of P.Ws.17 and 18. He also examined and recorded the statements of Bank officials C.W.27, P.W.11 and P.W.12.

68. On 12.1.2007, P.W.33 – K. Balakrishna, who is the friend of accused No.1 was secured to the Police Station and got the information that he gave the SIM card to the accused No.1 for use. His statement was recorded.

P.W.33 also informed that accused No.1 instructed him to remove and hide the advertisement banner, which contained his photograph. The said banner was produced and the same was also seized and marked as M.O.77. The mahazar was drawn in terms of Ex.P.39. He requested the PWD Engineer to draw the mahazar and accordingly he prepared the sketch in terms of Ex.P.51. On 16.1.2007, he has received the report from the finger print expert in terms of Ex.P.58. On 15.1.2007, finger print expert gave one report in respect of finger impressions of the accused on the gum tape role in terms of Ex.P.59. On 20.1.2007, he gave the requisition to the Tahsildar to conduct the test identification parade and also he received the report from RTO office with regard to driving licence of accused Nos.1 and 2. Ex.P.52 – report was received and so also Ex.Ps.73 and 74 regarding licence of accused Nos.1 and 2. On 27.1.2007, he received two sealed covers brought from Bowring Hospital under the mahazar Ex.P.10. On 29.1.2007, he sent the articles seized to FSL. On 31.1.2007, he visited the Company in which the deceased was working. The Manager gave one letter in respect of laptop of the Company given in the name of the deceased and the same was marked as per Ex.P.99 and appointment letter as Ex.P.100.

69. On 13.2.2007, he has sent the specimen signature on the handwriting of the accused No.1, which he has given in the Police Station and handwriting with signature of accused No.2 which they obtained for examination and report. On 12.1.2007, they asked the information with HSBC Bank and Citi Bank in terms of Exs.P.88 and 89 and the Banks have given the reply in terms of Exs.P.3 and 4 respectively. On 26.2.2007, he referred the weapons seized and also about the particulars of the injuries sustained by the deceased with the doctor for examination and opinion. The doctor has given the opinion in terms of Ex.P.67.

70. On 5.3.2007, he has received the report from the FSL in terms of Exs.P.75, 78 and 79. He has also received back the admitted signatures of accused Nos.1 and 2 and also the questioned signatures of accused Nos.1 and 2 as per Ex.P.76 and so also Ex.P.77. He obtained the final report from the Medical Officer and also recorded the statement of witnesses. He also received the test identification parade report in terms of Ex.P.6. He obtained the call details in terms of Ex.P.65. Sketch is marked as Ex.P.30, report as Ex.P.31, photographs as M.Os.11 to 16 and so also M.Os.46 to 63 and 72, 73 in respect of the deceased.P.W.16 gave the statement in terms of Ex.P.8 and P.W.33 as per Ex.P.50. After completion of the investigation, he filed the charge-sheet. He was subjected to cross-examination.

71. In the cross-examination, it is elicited that if there is any immediate development in the case, the same is to be mentioned in the case diary. The missing complaint filed by the wife of the deceased - P.W.21 was not registered by him but it was registered by Airport Police Station. ACP – P.W.38 told before him that accused used the debit card of the deceased and purchased one mobile phone and then they have used the SIM and on that basis the accused were apprehended. When he recorded the voluntary statements of the accused, at that time he came to know about the SIM and it was in whose name. He cannot say the SIM was in whose name. He further says that as on the date of the incident of the case, P.W.4 – Krishna was not the RC holder of M.O.1 and the transfer of the said vehicle in his name, which he has purchased from somebody was under process. He admits that when the car was seized in one case, during the pendency of that case, it cannot be transferred in the name of others. It is suggested that P.W.4 is not the owner of the vehicle at that time and the same cannot be released to P.W.4 and the same was not instructed to the Public Prosecutor and he admits the same. It is suggested that on 28.12.2006, he arrested the accused and there was a press meet on 29.12.2006 and the same was denied. He has not produced any documents to show that he has obtained the prior permission of the concerned Magistrate for obtaining the specimen forged signature under Ex.P.77.

72. P.W.32 – Ananda Reddy is the panch witness for six mahazars. P.W.19 – Prakash is the panch witness for three seizure mahazars. P.W.43 – T. Shankarmurthy is the panch witness for four mahazars. P.W.30 – Erachikkegowda is the panch witness for eight mahazars.

P.W.31 – Nagaraju is the panch witness for twelve mahazars. P.Ws.25 and 26 are the panch witnesses for four and three mahazars respectively. He admits that from the date of registering complaint until filing of the charge- sheet, he is the Investigating Officer of this case. B.K. Shivaram has submitted report regarding his investigation for the above purpose on 30.12.2006. He admits that he did not seek the help of Mangaluru police when he went to Mangaluru. It is elicited that he has not secured the permission of the Court and did not conduct any mahazar while taking the finger prints of the accused. He admits that in the FSL report – Ex.P.31 discharge of semen is present and observed. He did not seek any further expert opinion regarding its presence. It is suggested that during the investigation he came to know that the deceased was habituated for company of other ladies for sexual intercourse and he sustained the above injuries in such event and the same was denied. It is suggested that accused No.2 is the friend of accused No.1 and hence he has been falsely implicated in the case even though accused No.2 has no involvement in the case and the same was denied.

73. Having considered the oral and documentary evidence placed before the Court, this Court has to re-appreciate the material available on record. The State counsel would contend that the Court below has committed an error in not appreciating the evidence in a right perspective. It is also contended that murder was on account of wrongful gain.

74. The counsel appearing for the accused would contend that the Court below has meticulously appreciated the evidence available on record and extended the benefit of doubt in favour of the accused persons.

75. There is no direct evidence against the accused.

The case rests upon the circumstantial evidence. In a case of circumstantial evidence, the Court has to re-appreciate the material available on record whether the prosecution was able to prove the link in chain of circumstances and then only the Court can arrive at a conclusion that accused have committed the murder. Hence, this Court would like to consider the material available on record chronologically taking into consideration all the incidents that had taken place and thereafter the material available on record.

76. It is the case of the prosecution that in order to make wrongful gain, the accused Nos.1 and 2 have committed the murder of the deceased. The doctor, who conducted the post mortem on the dead body of the deceased has given the post mortem report in terms of Ex.P.66 and report in terms of Ex.P.67. On perusal of Ex.P.66, it is evident that the doctor has opined cause of death was due to asphyxia, compression over nose, mouth and chest. The accused also did not dispute the cause of death in the cross-examination of the doctor. The doctor has been examined as P.W.42 and his evidence is consistent and his report in terms of Ex.P.67 is also clear with regard to the stabbed wound mentioned in the post mortem report that could have been caused by type of knife which he had examined, so also gum tape examined could have been used to close the mouth and nostrils. The cotton rope which he examined could have been used to tie hands and legs. The cotton cloth examined could have been used to close the mouth and nostrils and hands and legs. The post mortem report – Ex.P.66 discloses eight external injuries and also the opinion of the doctor is clear that the death of the deceased is on account of homicidal. Hence, it is the case of homicidal death. Now let this Court examine each of the circumstances to consider the oral and documentary evidence whether the prosecution has established the chain link circumstances.

77. It is the case of the prosecution that the accused persons took the vehicle Maruthi car bearing No.KA-04 M 6150 and dashed against the vehicle of the deceased. Thereafter, they used pepper spray and took the deceased in the very same car belonging to the accused and stabbed him with knife and obtained the secret code number of the ATM card and thereafter committed the murder. It has to be noted that the prosecution in order to prove the fact that the accused persons have dashed the car of the deceased, examined P.W.4. P.W.4 in his evidence, categorically deposed that he was having acquaintance with the accused No.1. It is his evidence that on 21.12.2006 at about 6.30 p.m., accused No.1 came near his house on his Hero Honda motorcycle and requested him to give the car in order to take his mother to the hospital since she was not keeping well. He considered his request and gave the car and hence the accused No.1 left the motorcycle with P.W.4 and thereafter he did not bring it back. On the next day, he went near the house of accused No.1. On enquiry, he told that he came late and hence he could not return the car but he was perturbed at that time. In the cross-examination of this witness, nothing is disputed with regard to the taking of the car but he was perturbed at that time. The only answer elicited is that the accused No.1 did not take his car earlier and hence it is clear that the prosecution was able to prove that accused No.1 took the car of P.W.4. It is also pertinent to note that the prosecution has relied upon the document at Ex.P.52 – IMA report of the vehicle of P.W.4 and also the deceased and it reflects the damages caused to the right side portion of the car, which belongs to P.W.4 and the rear portion of the car of the deceased. Hence, it is clear that two vehicles were involved in the accident belonging to the deceased as well as the accused, which he had taken from P.W.4. The evidence of P.W.35 who conducted the inspection of both vehicles is not disputed.

78. It is also the case of the prosecution that accused persons have used the pepper spray in order to take the deceased in the vehicle and in support of their case, the prosecution examined P.Ws.17 and 18. P.W.17 in his evidence states that accused No.2 was working as a security guard till the middle of December 2006. He was terminated from the Company. The police have enquired with regard to the pepper spray and asked him to show the same. Accordingly, he showed the same to the police. He saw one pepper spray missing and told that it might have been taken by the Field Officer or Area Manager. He can identify the pepper spray tin. He identifies M.O.36, as the same that had been given for them for their self- protection in the Company. In the cross-examination, it is elicited that the same has to be handed over while leaving the Company. However, he volunteers that the same would be kept in the cupboard of the security office. It is also elicited that M.O.36 type of pepper spray tin is also available in the open market.

79. P.W.18 also identifies accused No.2. He also reiterates the same that accused No.2 was working in the Company and he says that during December 2006 accused No.2 visited the Company and asked that he intended to meet P.W.17. Later he came to know about the missing of the pepper spray. Prior to the arrival of the police, they had no knowledge of one of the two pepper spray tin missing, which were kept in the security office. In the cross-examination also it is elicited that they came to know about one of the pepper spray tin missing only when the accused No.2 was brought by the police.

80. Having considered the evidence of P.Ws.17 and 18, it is clear that pepper spray tin was missing. It is also an undisputed fact that accused No.2 was working in the same Company in which P.Ws.17 and 18 were working. It has to be noted that on 30.12.2006 after apprehending accused Nos.1 and 2, pepper spray tin was seized at the instance of the accused No.2. P.W.49 deposed with regard to the same. Apart from that, P.W.48 in his evidence he states that he was called to the Police Station and in his presence accused No.2 produced the pepper spray tin, when his personal search was made which is marked as M.O.36. In this regard, the prosecution relies upon the evidence of P.W.19., who in his evidence has deposed with regard to subjecting accused No.2 for personal search and drawing of the mahazar and seizing of pepper spray – M.O.36. Though he was cross-examined, nothing worthwhile is elicited regarding seizure of M.O.36. P.W.36 also in his evidence has deposed that when the accused No.2 was subjected to personal search, M.O.36 yellow colour tin was seized. The only answer elicited in the cross-examination is that he cannot distinctly say as to who produced which article. The mahazar was drawn while seizing in terms of Ex.P.9. The evidence of P.Ws.19 and 36 is consistent with regard to the recovery of pepper spray, which was used by the accused which was in the possession of the accused No.2. P.W.49 also consistently deposed regarding recovery of the same. The prosecution has proved with regard to the recovery of pepper spray by examining the witnesses at the instance of the accused No.2.

81. It is the case of the prosecution that after committing the murder, the accused persons have used the ATM card of the deceased. Hence, the Investigating Officer sought the details of the concerned Bank. P.W.11, who is the Banker in HSBC Bank, in his evidence states that on 23.12.2006, the police had come to the Bank with a requisition to furnish the details of saving bank account held by the deceased. In response to the same, he has furnished the details of the transactions that had taken place on 21.12.2006 and 22.12.2006 and he issued the letter in terms of Ex.P.3. In terms of Ex.P.3 he had mentioned that a total transaction of Rs.27,000/- had taken place in respect of the credit card account maintained by the deceased on 21.12.2006 and 22.12.2006. In the cross-examination, nothing worthwhile is elicited regarding using of the credit card. In support of the case, the prosecution also examined P.W.12, who is the Assistant Vice President of Citi Bank. P.W.12 deposed that he had furnished the details of the account held by the deceased in terms of Ex.P.4.

82. Now let us see Ex.P.3, which discloses that the transaction had taken place on 22.12.2006 i.e., on the next day of committing the murder of the deceased, which reveals that six transactions had taken place in the morning after 11.14 hours for amount of Rs.300/-, Rs.3,315/-, Rs.2,400/-, Rs.428/-, Rs.6,340/- and Rs.16,830/- till evening upto 18:00 hours. It has to be noted that the murder was committed on the previous day and thereafter card of the deceased was used on the very next day. In order to substantiate these transactions, the prosecution also produced several documents i.e., Exs.P.14 to 17, both bills as well as receipts. Exs.P.41, 40, 42 and 43 are the receipts of the hotel in which the accused had food and payments are made using the card of the deceased. The respective shop owners were also examined for the transactions including the first transaction of filing up of fuel to the motorcycle belonging to the accused for an amount of Rs.300/- and the same was spoken by the petrol bunk official and also the purchases made in the respective shops by the prosecution witnesses. Hence, it is clear that the prosecution was able to prove that the accused persons by using the card of the deceased transacted in the respective shops and purchased the articles. Those articles were also seized at the instance of both accused Nos.1 and 2 when they were taken to their respective residences and those articles were also marked as M.Os. before the Court. Exs.P.44 and 45 is also the bill and receipt for having purchased from the shop of Classic Polo. All the witnesses have identified accused Nos.1 and 2 with regard to their respective visit made to their shops when the accused persons led the panch witnesses and the Investigating Officer to their respective shops and having purchased the same. The evidence of P.W.36 is clear regarding seizure of articles which were purchased using the card. The evidence of P.W.38 who seized the articles from accused Nos.1 and 2 in the presence of panch witnesses is consistent. That apart, the evidence of P.W.39 is clear that the finger prints which were found in the car were tallying with the finger prints of accused Nos.1 and 2 in terms of the report at Ex.P.58. The handwriting expert opinion in terms of Ex.P.75 confirms the signatures found on the bills which belong to accused No.1.

83. The other witnesses is in respect of transaction dated 23.12.2006, spoken by P.Ws.5 and 6. P.W.5 in his evidence categorically states that he had seen the accused Nos.1 and 2 and identified both of them before the Court. It is his evidence that both had come to the parking lot at Kolar on 23.12.2006 and had parked their motorcycle at about 7.00 p.m. and thereafter they took the motorcycle on 26.12.2006 and accused persons were taken to parking slot on 4.1.2007 and at that time he identified them. The only suggestion made was that the accused did not take the Investigating Office and panch witnesses to the parking slot and the same was denied. No doubt in the cross-examination, it is elicited that it is highly impossible to identify a person, who parks the vehicle for a short span of time in the parking slot. But P.W.5 categorically deposed that if they fail to take back the vehicle for more than two days, then they can identify such persons. The prosecution also relies on the evidence of P.W.6, in whose shop the accused got changed the number plate of the motor cycle and in the cross-examination, for the first time he identified accused Nos.1 and 2 and the said suggestion was denied. In the cross-examination of P.Ws.5 and 6, nothing is elicited that accused Nos.1 and 2 have not visited P.Ws.5 and 6 and the evidence of these two witnesses are also consistent regarding changing the number plate as well as parking the two wheeler in the parking slot and both of them identified accused Nos.1 and 2.

84. The other circumstances the prosecution relied upon is that the accused persons went to Kolar on 23.12.2006 after having purchased the articles at Bengaluru on 22.12.2006. Both of them had stayed in the Hotel called Anjanadri and in this regard the prosecution relied upon the evidence of P.W.23, who states that the accused Nos.1 and 2 came and asked about the room and accused No.2 revealed his name as Shankar and they have come from Chittoor and he quoted the rate of the rent and he has given the room to them. He also states that on the next day when he came, the accused vacated the room before he reached the lodge. He also identifies accused Nos.1 and 2 and the relevant register and cash book which are marked as Exs.P18 to P20. In the cross-examination, it is elicited that whenever any customer comes to the lodge, they give room only on being satisfied with their address proof, if not, they would not give any room. He cannot identify all the customers, who come to their lodge. It is his specific evidence that he was there when the accused Nos.1 and 2 came and enquired about the room and nothing is elicited except eliciting that he cannot identify all the customers. The documentary proof Exs.P.18 to 20 disclose that both accused Nos.1 and 2 took the room in the fictitious name of Shankar. P.W.23 also identifies the accused Nos.1 and 2 stating that they availed the room. The evidence of P.W.23 inspires that both the accused availed the room.

85. The other circumstances relied upon by the prosecution is with regard to the accused visiting Dharmasthala and Mangaluru to the shop of P.W.7. Hence, the prosecution relied upon the evidence of P.W.7, who is the Store Manager in Woodland Shoes situated at Kankanadi, Mangalore. The evidence of P.W.7 is that the accused Nos.1 and 2 had come to his store on 25.12.2006 at 9.30 a.m. On that day, they bought shoes and clothes from his stores valued at Rs.11,550/- and they used the credit card of Citi Bank. But the same was declined and hence they left the shop stating that they would get the money from ATM, but they did not turn up. It is his further evidence that when the accused persons led the Investigating Officer to the shop of P.W.7, he identified accused Nos.1 and 2. He claims that the police had put mask on their faces. But he identified them on the basis of their movements. In the cross-examination of P.W.7, it is elicited that both of them were in the shop for about 15 minutes and police did not ask any of his assistants to identify accused Nos.1 and 2.

86. P.W.49, who took the accused persons to the said shop, in his evidence also he reiterates that he took the accused persons to Mangaluru to the shop of P.W.7 and the evidence of prosecution is consistent with regard to taking the accused to Mangaluru and also it is the evidence of the prosecution that while returning from Mangaluru to Bengaluru, the accused led them to show the place where they tore the credit card and efforts were made to search the same, but they could not trace the same near Kamat Hotel at Channarayapatna and mahazar was drawn to that effect.

87. The prosecution relied upon the evidence of P.Ws.33 and 38. P.W.38 had arrested accused Nos.1 and 2 on 30.12.2006. P.W.33 in his evidence he states that the police have approached him in connection with the SIM card used by the accused No.1. In his evidence, he states that he had purchased the SIM and nobody in his family claimed the SIM and hence he gave that SIM card to the accused No.1. When the police had approached him, he showed the house of accused and there is discrepancy in the evidence of P.Ws.33 and 38 and it is the case of the prosecution that accused persons were arrested on 30.12.2006. The Court below found the discrepancy in the evidence of P.Ws.33 and 38 and disbelieved the case of the prosecution and the Court has to eschew certain discrepancy with ample material available on record. Minor discrepancies cannot be magnified as held by the Court below. The fact that accused Nos.1 and 2 were arrested is not in dispute and P.W.38 in the cross-examination clarified that he has not arrested accused No.1 on that day since his involvement was not confirmed to arrest him on that day.

88. The dispute raised by the defence is that accused No.1 was arrested on 29.12.2006 and not on 30.12.2006. We have already pointed out that the arrest of accused is not in dispute. The only contention of the defence is that P.W.33 showed the house of accused No.1 on 29.12.2006 itself. No doubt, P.W.33 in his evidence has stated that police have approached him and he took the police to the house of the accused No.1 and there is no material that accused was apprehended on 29.12.2006 itself and the contention of the defence is that he was arrested on 29.12.2006 itself is not supported by any material. Nothing is elicited in the cross-examination of P.W.33 that he was arrested on 29.12.2006 itself. It is suggested that he did not give the SIM card to the accused No.1 and the same was categorically denied. Hence, the very contention of the defence that accused No.1 was arrested on 29.12.2006 itself cannot be accepted. The explanation given by P.W.38 can be accepted.

89. However, the Court below taking note of the fact that P.W.33 took the police to the house of accused No.1 and also considering the evidence of P.W.38 who deposed that accused Nos.1 and 2 were apprehended together, found that there was discrepancy. The said minor discrepancy is not fatal to the case of the prosecution and the explanation can be accepted and the explanation of P.W.38 is not considered by the Trial Court.

90. The Investigating Officer, who has been examined as P.W.49, in his evidence states that after the arrest of accused Nos.1 and 2, he made a personal search of both the accused Nos.1 and 2 and while making the personal search, laptop of the deceased was recovered at the instance of accused No.1. Prosecution also relied upon the documentary evidence that the laptop belongs to the Company in which the deceased was working. In this regard, the documents were also collected from the Company for handing over the laptop to the deceased and the witness who has been examined also reiterates the same. Hence, it is clear that laptop was recovered at the instance of the accused. The prosecution also examined P.W.19 and in his presence laptop was seized which is marked as M.O.37 and wire which was marked as M.O.43 and apart from that cash of Rs.26,650/- was seized which was marked as M.O.38, one gold ring of the deceased, which is marked as M.O.5 and one Nokia Company mobile M.O.39 from accused No.1. It is also the evidence of P.W.49 that when they made personal search of accused No.2, they found one cobra pepper spray – M.O.36, button knife – M.O.40, key bunch -M.O.44 and cash of Rs.1,920/-

- M.O.45. Mahazars were drawn in terms of Ex.P.9. The recovery at the instance of accused Nos.1 and 2 is proved through the evidence of panch witnesses and Investigating Officer – P.W.49.

91. The other circumstances relied upon by the prosecution is with regard to taking the accused persons to Kolar. The other witness is P.W.30, who supports the case of the prosecution with regard to the accused persons taking panch witnesses and the Investigating Officer to a lodge and drawing the mahazar as per Ex.P.32. He identifies his signature. In the cross-examination of P.W.30, the defence did not elicit in the cross-examination of P.W.30 regarding Ex.P.32. The learned Public Prosecutor treating the witness P.W.30 elicited answer from P.W.30 regarding making the signature on Ex.P.32 and 35 and the signatures were not denied by the witness. The evidence of P.W.23 is consistent and document Exs.P.19 and 20 confirm that the accused Nos.1 and 2 stayed in the lodge at Kolar.

92. P.W.19 is the mahazar witness. He deposed with regard to the recovery at the instance of accused Nos.1 and 2. In the cross-examination of P.W.19, it is elicited that he had not been served with any notice. He was near his house when he was summoned to act as pancha. His signature was taken on each of M.Os.36 to 40 and 43 to 45 seized under Ex.P.9. But the police did not take his signature on the slip of paper and pasted on M.Os. But he does not know the contents of the documents to which he affixed his signature. In the cross-examination, nothing is elicited that the accused Nos.1 and 2 were not subjected to any personal search and the evidence of P.W.19 is consistent with regard to the recovery is concerned. The Court below has committed an error in coming to the conclusion that knife was recovered in one breath when the personal search was made and in another breath prosecution says that accused No.2 produced the knife. The Court below fails to take note of the fact that M.O.40 – knife was seized when the personal search was made and the said M.O.40 was not used for committing the offence. Only when the accused No.2 was apprehended, he was having the knife. But it is M.O.70 which was seized at the instance of the accused was the knife used for committing the offence. The same was recovered at the instance of the accused No.2 when the accused Nos.1 and 2 have led the panch witnesses and the Investigating Officer. The recovery witness is P.W.26 for recovery of knife. He categorically states that the accused have led the panch witnesses and the Investigating Officer near the place of Bhadrappa Extension and produced the knife from a cow dung pit and mahazar was drawn in terms of Ex.P.27. He also identifies the signature as Ex.P.27(a). He also identifies the same before the Court as M.O.70. In the cross-examination of P.W.26, nothing is elicited with regard to Ex.P.27, except eliciting that mahazar was drawn on the road which proceeds from Hebbal Flyover side towards BEL. It is elicited that police have not taken the signature on the slip pasted on M.O.70. But he states that the police have taken the signature on the slip pasted on the cover on which M.O.70 is seized and it had blood stains on the front portion and a blue plastic wire had been twisted at the handle portion. It is pertinent to note that the evidence of P.W.26 is consistent with regard to recovery of knife, which was used and the injuries found on the dead body corresponds with the knife which was seized as M.O.70. The Court below fails to take note of all these aspects into consideration and erroneously came to the conclusion that the theory of prosecution cannot be believed with regard to the seizure of knife and the very approach of the Trial Court is erroneous and failed to consider that two knives were seized – one used for committing offence – M.O.70 and M.O.40 was only seized when the personal search was made on his arrest.

93. It is pertinent to note that the prosecution also relied upon the evidence of FSL expert insofar as the blood stains are concerned and the documents of Exs.P.78 and 79 are marked through P.W.47. P.W.47 is the expert. On perusal of the report at Ex.P.79, it is clear that item No.10 is the M.O.70. Shirts of accused Nos.1 and 2 which were blood stained were item Nos.11 and 12 and the report at Ex.P.78 confirms that item Nos.10 to 12 were stained with human blood that too ‘B’ group blood. It is clear that the shirt of the deceased which was item No.1 also contains the human blood and also item Nos.11 and 12 shirt of accused Nos.1 and 2 also contained human blood and both the shirts of the deceased and accused Nos.1 and 2 contained ‘B’ group blood and there is no explanation on part of the accused with regard to the blood groups. The evidence of P.W.47 is clear that he subjected the seized articles for chemical examination and he gave the report in terms of Exs.P.78 and 79. In the cross-examination of P.W.47, it is elicited that without determining the original of blood stains, blood grouping cannot be done. Except the same, nothing is elicited to disbelieve the evidence of P.W.47. The prosecution was able to prove that the deceased and accused persons clothes were stained with ‘B’ group blood and there is no explanation on part of the accused.

94. P.W.19 in his evidence has deposed that he was summoned to the Police Station and one witness Manjunath was also present in the Police Station. The police seized one yellow colour t-shirt and a blue colour shirt belonging to the accused on that day under mahazar Ex.P.10. It bears the signature as Ex.P.10(a). He also identified M.Os.41 and 42 - two shirts, which were seized under Ex.P.10. The other witness is P.W.33 and he was treated hostile by the prosecution since P.W.33 partly turned hostile. But it is elicited in the cross-examination that the accused led him and the police to the wet land of one Rama Reddy situated on Varthur-Panathur Road. The accused produced M.Os.41 and 42 and the same were seized under mahazar Ex.P.11. It bears the signature Ex.P.11(a). In the cross-examination regarding the seizure of the clothes are concerned, a suggestion was made that he had not been summoned to act as a pancha. He does not know anything about Exs.P.9, 10 and 11 and the same was denied. He categorically states that Ex.P.11 drawn up was at a distance of 13 to 14 kms. from Mahadevapura Police Station. At the spot of Ex.P.11, the police took the two shirts. The evidence of P.W.19 is consistent with regard to the seizure of the blood stained clothes of accused Nos.1 and 2. The FSL report in terms of Exs.P.78 and 79 confirms the blood stains and that too the same is ‘B’ group blood. The prosecution was also able to prove the seizure of blood stained clothes of accused Nos.1 and 2.

95. P.W.31 supports the case of the prosecution regarding Ex.P.32 taking the panch witnesses and also the Investigating Officer to Anjanadri Lodge and drawing mahazar in terms of Ex.P.32 and seizing of bills at Ex.P.33 and so also credit card bill of Shivashakthi Enterprises Petrol Bunk as Ex.P.40 where they got filled petrol to their two wheeler and also P.W.31 supports the case of the prosecution regarding drawing mahazar Ex.P.34. Though P.W.30 turned hostile, P.W.31 evidence is consistent regarding drawing of mahazar at Exs.P.32, 33, 34, 35 and so also 36. The other documents of Ex.P.37 with regard to the payment of hotel bill for having taken the food and thereafter made the payments using the credit card which is also evident in Ex.P.3. The Ex.P.3 also confirms that the payment of Rs.300/- paid to petrol bunk by using the card of the deceased.

96. Having considered the material available on record, it is clear that there are recoveries at the instance of the accused and prosecution witnesses have supported the case of the recovery. The incriminating evidence discloses that the recoveries are made at the instance of the accused, i.e., articles belonging to the deceased and also the articles which the accused persons have purchased by using the credit card. After committing the murder, purchased the articles by using the credit card of the deceased, i.e., on the very next day on 22.12.2006. They had been to some other places i.e., Kolar, Dharmasthala and Mangaluru and the Investigating Officer has secured the documents at the instance of the accused regarding the accused persons visiting different places and staying in the hotel at Kolar and so also visiting Mangalore and purchasing several articles by using the card of the deceased.

97. We would like to refer the judgment of the Hon’ble Supreme Court reported in 1995 SCC (CRI) 1085 in the case of ASHOK KUMAR –VS- STATE (DELHI ADMINISTRATION) regarding the report of the Forensic Science Laboratory containing ‘B’ group blood. Another fact of importance is the discovery of B group blood on the stone M.O.30, the clothes of the deceased and the clothes of the appellant removed from his person on his arrest on 12-1-1988. This is indicative of his being in close proximity of the deceased when he was fatally wounded. Para No.9 of the judgment reads as hereunder:

“9. To begin with we have no reason to disbelieve PW 33 in whose house the appellant and his party stayed for the night on 27-12- 1987. It is true that the said witness could not positively identify the woman accompanying the appellant because according to him she was in parda. Still, it cannot be doubted that the appellant had a female accompanying him and had a man and two children along with him. Then there is no reason to disbelieve the evidence of Bajrangi Lal, Guide, PW 27 at whose suggestion and behest they were lodged in Hotel Eagle at an unearthly hour at about 11.00/11.20 p.m. Bajrangi Lal correctly identified Smt Prem Kanwar at the identification parade. Besides, he was the one in whose presence the appellant had signed the hotel papers as Vijay Kumar and had paid Rs 200 as advance. Bajrangi Lal had no axe to grind against the appellant and his co-accused. Similarly, Raj Kumar, waiter, PW 23 who was responsible for giving possession of the two rooms to the party of the appellant cannot be doubted and equally of his having seen both the accused in the company of each other at the time of his serving tea to them the following day at about 9.00 a.m. In the same sequence the evidence of Sunil Kumar, PW 12, the Hotel Manager also cannot be doubted, all the more when the handwritings of the appellant have successfully been identified as his by the handwriting expert, PW 30, on his obtaining and comparing the admitted handwriting and signatures of the appellant. Another fact of importance is the discovery of B group blood on the stone Ex. P-30, the clothes of the deceased and the clothes of the appellant removed from his person on his arrest on 12-1-1988. This is indicative of his being in close proximity of the deceased when he was fatally wounded. And lastly is the statement of the co-accused which fixes the appellant to be in the company of the deceased at or about the time when he met his death, let alone what he said to his co-accused. Lastly ever brooding to the occurrence is the motive of the crime. No animus is alleged against the prosecution. It has given the chain of events and the movements of the accused inter se and of their being seen together in the company of the deceased. The appellant has thus necessarily to be held guilty of the crime, unless he had a plausible explanation to offer. But instantly, the appellant gave no explanation at all what to say of a plausible one. The appellant, in our view, was thus rightly convicted of the offence under Section 302 IPC. The appraisal of evidence of both courts was sound and we entirely agree with their verdict.”

98. In the case on hand also, the knife M.O.70 and clothes of accused Nos.1 and 2 which are marked as M.Os.41 and 42 contains blood stains and the report of the Forensic Science Laboratory also confirms the fact that the clothes of the deceased, knife, M.O.70 and shirts of accused Nos.1 and 2, M.Os.41 and 42 contains the very same blood group i.e., ‘B’ group which is evident in Exs.P78 and 79 which corroborates the case of the prosecution.

99. We would also like to refer the judgment of the Hon’ble Apex Court reported in (2011) 3 SCC (CRI) 550 in the case of KUMAR AND OTHERS –VS- STATE REPRESENTED BY INSPECTOR OF POLICE, TAMIL NADU with reference to Para No.57 of the judgment wherein it is observed that discovery appears to be credible under Section 27 of the Evidence Act, 1872 and so also recovery of blood stained weapon and no explanation was given by the accused and discovery positively further proved prosecution case. Para No.57 of the judgment reads as hereunder:

“57. It was then urged by the learned counsel that this was an open place and anybody could have planted veechu aruval. That appears to be a very remote possibility. Nobody can simply produce a veechu aruval planted under the thorny bush. The discovery appears to be credible. It has been accepted by both the Courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the Forensic Science Laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case.”

100. In the case on hand also, weapons and so also the clothes of the deceased and accused persons which contains ‘B’ group blood was recovered and there was no explanation on the part of the accused and the recovery is also proved by examining the witnesses. Apart from that, the report of the Forensic Science Laboratory confirms the fact that the articles found were stained with human blood. The Hon’ble Apex Court in the judgment cited supra has also held that though the blood group could not be ascertained as the results were inconclusive, the accused had to give some explanation. But in the case on hand, blood group is also ascertained from the articles which were recovered at the instance of the accused and the report of the Forensic Science Laboratory confirms that it contains the human blood and no explanation was given by the accused.

101. We also would like to rely on the judgment reported in AIR 1991 SC 1853 in the case of KUJJI @ SURENDRA TIWARI –VS- STATE OF MADHYA PRADESH regarding discovery of weapon of offence and appreciation of evidence, wherein it is observed that nothing has been brought in the cross examination to shake the intrinsic value to be attached to his evidence. Even in the cross examination of Investigating Officer, nothing has been brought out to infer that the choice of P.W.5 as a panch witness was a deliberate one made with a view to enlisting his support to the prosecution case. The mere fact that he was a witness to all the panchnamas prepared by the investigating officer is by itself not sufficient to discard his evidence. Even in the case of an interested witness, it is settled law that his evidence cannot be overlooked merely on that ground but at the most it must receive strict scrutiny. On the question of recovery of the weapon as well as the blood-stained pant of the appellant there is hardly any effective cross-examination. Nor has the appellant offered any explanation in his statement recorded under Section 313 of the Code. In these circumstances we are not inclined to reject his evidence on the specious plea of his being an interested witness.

Para No.9 of the judgment reads as follows:

“9. After the appellant and his two companion Parsu and Gudda were arrested they were interrogated by the investigating officer PW 13 Ramji Singh. In the course of interrogation they showed their willingness to point out the weapons of assault. Thereupon the investigating officer called two panchas, one of them being PW 5 Panna Lal. The very same panch witnesses were panchas to all the three discovery panchnamas as well as panchnamas regarding the attachment of the clothes worn by the appellant and his companion. It was, therefore, contended by the counsel for the appellant that PW 5 Panna Lal was a stock witness whom the police had employed to act as a panch witness. Pointing out that it was Tulsi Ram the brother of the deceased who had chosen him because he was closely associated with the family of the deceased and was intimate with Babulal another brother of the deceased, Mr Lalit submitted that no reliance can be placed on the evidence of such an highly interested and specifically chosen witness. The witness comes from the same locality and his house is situate within 100 yards of the residence of the deceased. He knows the family of the deceased quite well being as a neighbour and of the same ‘biradari’. It is equally true that he had gone to the hospital on learning about the assault on Gulab and had stayed back with Babulal since the latter was not feeling well. But would it be proper to throw out his evidence on account of his neighbourly relations with the family of the deceased, when nothing has been brought out in cross- examination to shake the intrinsic value to be attached to his evidence? Even in the cross- examination of the investigating officer nothing has been brought out to infer that the choice of PW 5 as a panch witness was a deliberate one made with a view to enlisting his support to the prosecution case. The mere fact that he was a witness to all the panchnamas prepared by the investigating officer is by itself not sufficient to discard his evidence. Even in the case of an interested witness, it is settled law that his evidence cannot be overlooked merely on that ground but at the most it must receive strict scrutiny. In the case of PW 5, except being a good neighbour nothing more is shown. On the question of recovery of the weapon as well as the blood-stained pant of the appellant there is hardly any effective cross-examination. Nor has the appellant offered any explanation in his statement recorded under Section 313 of the Code. In these circumstances we are not prepared to reject his evidence on the specious plea of his being an interested witness. In Himachal Pradesh Administration v. Om Prakash (1972) 2 SCR 765 : (AIR 1972 SC 975) this Court observed at page 777 (of SCR) : (at p.983 of AIR) that it could not be laid down as a matter of law and practice that where recoveries have been effected from different places on the information furnished by the accused, different sets of persons should be called in to witness them. There was no injunction in law against the same set of witnesses being present at the successive enquiries if nothing could be urged against them. It is, therefore, clear from the decision of this Court that merely because the same set of panch witnesses were used for witnessing all the three discoveries as well as the attachment of the clothes of the appellant and his companions. PW 5's evidence could not be discarded since nothing had surfaced in cross-examination to shake his evidence. We are, therefore, satisfied that the evidence of PW 5 Pannalal was rightly accepted by both the courts below. We make limited use of this evidence in the sense that we do not use any part of the evidence admissible under Section 27, Evidence Act, against the appellant. We merely use the factum of find of the incriminating weapon from his garage and his inability to explain the presence of human blood thereon as a circumstance against the appellant. The evidence of PW 5 further shows that when the appellant was arrested his garments, namely, shirt and pant were attached as blood-like stains were noticed thereon. These articles were sent to the Chemical Analyser and Serologist for examination and report. As stated earlier these reports reveal that the blood stains on the pant worn by the appellant were of human origin. The appellant has not offered any plausible explanation for the existence of human blood on his pant. This too is a circumstance against the appellant particularly because no injury was noticed on the person of the appellant.”

102. In the case on hand also, the defence counsel has also raised the defence that the witnesses who have been examined before the Court are the witnesses to number of mahazars drawn. Hence, their evidence cannot be relied upon. The very contention of the defence cannot be accepted and nothing has been brought out in the 313 statement of the accused regarding recovery of weapon as well as blood stained clothes of the accused.

103. We would also like to refer to the judgment of the Hon’ble Apex Court reported in (2011) 3 SCC (CRI) 803 in the case of RAKESH AND ANOTHER VS STATE OF MADHYA PRADESH regarding proof and recovery of incriminating material. It is observed in the said judgment that when there was no proof that Investigating Officer had any animosity or any kind of interest and closeness to deceased and also there cannot be any set pattern or uniform rule of human reaction to discard a piece of evidence. Para Nos.26, 28 and 29 of the judgment reads as hereunder:

26. The other circumstances particularly, the statements of B.M. Dubey, Investigating Officer (PW 21) and Balram (PW 9), the arrest of the accused, recovery of weapons on their disclosure statements proved the prosecution case. The depositions of B.M. Dubey (PW 21) had been natural. There was no proof that the IO (PW 21) had any animosity or any kind of interest and closeness to the deceased. Therefore, the question of not believing the statement of B.M. Dubey, IO (PW 21) does not arise. The High Court in spite of the fact of disbelieving Khemchand (PW 10), found the prosecution case wholly proved on the sole testimony of Anil (PW 11).

28. Even if there are minor discrepancies between the narrations of witnesses when they speak on details, unless such contradictions are of material dimensions, the same should not be used to discard the evidence in its entirety. The trivial discrepancy ought not to obliterate the otherwise acceptable evidence.

29. In Leela Ram v. State of Haryana this Court observed as under: (SCC pp. 533-34, para 11) “11. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.”

104. We would also like to refer to the judgment reported in (2001) 1 SCC 652 in the case of STATE, GOVERNMENT OF NCT OF DELHI VS SUNIL AND ANOTHER with reference to Para Nos.21 and 22 which reads as under:

“21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

22. In this case, the mere absence of independent witness when PW 17 recorded the statement of A-2 Ramesh and the knickers were recovered pursuant to the said statement, is not a sufficient ground to discard the evidence under Section 27 of the Evidence Act.”

105. We would like to refer to the judgment reported in (2012) 3 SCC 766 in the case of NEEL KUMAR V. STATE OF HARYANA with reference to para No. 30 which reads as herein under:

“30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 Cr.PC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him.”

106. We would like to refer to the judgment reported in ILR 2004 KAR 2531 in the case of BORAIAH @ PUJARI BORAIAH VS. STATE BY THALAK POLICE with reference to para Nos. 14 and 18 which reads as herein under:

”14. In addition, the prosecution also places reliance upon the recovery of weapon M.O. 1 at the instance of accused, to prove its case. The seizure panch — P.W. 8 has turned hostile. But the prosecution heavily relied upon the evidence of P.W. 14 — the Investigation Officer. Upon consideration of the relevant material on record relating to recovery, the Court is of the considered opinion that there is absolutely no reason as to why the evidence of independent witness — public servant i.e, Investigating Officer — P.W. 14 should be disbelieved. The evidence of P.W. 14 — Inspector discloses that on getting information about the presence accused at Chikkaullarthi, he went to the said place along with the staff and arrested the accused. The voluntary statement of accused — Ex. P. 9, was recorded. The accused led the Police and Panchas to the land called Sangammanavara Ajjanna hola near Gajjiganahally bus stand and took out kodli (M.O. 1) from jail bush. There is nothing on record the show that P.W. 14 has got any axe to grind against the accused and that he has acted partially.”

“18. Examination of the accused under Section 313 Cr. P.C. is not an empty or idle formality. The underlined object behind Section 313 of Cr. P.C. is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. Thus, said provision makes it obligatory on the part of the Court to question the accused on the evidence and circumstances appearing against him so as to apprise him the exact case which he is required to meet. Thus, each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to serious irregularity, vitiating the trial if it is shown to have prejudiced the accused. Apart from affording an opportunity to the accused to explain the incriminating circumstances against him, it would also help the Court in appreciating the entire evidence. While deciding the criminal case, the Court has to consider the statement of the accused in the light of the evidence adduced by the prosecution and weigh such statements with the probabilities of the case either in his favour or against him. Hence, the questions to be put to the accused are to be framed with care and caution which should contain mainly the incriminating material against the accused. Recording of the statement under Section 313 Cr. PC is the last opportunity for the accused to explain any circumstance that may appear against him in the evidence. The accused should know as to what is the exact incriminating material against him. As such the Trial Courts shall frame questions on the basis of incriminating evidence against accused. Inspite of repeated pronouncements on this aspect, it is seen from the record of the present case that the learned Sessions Judge has not given his due attention to this aspect while framing the questions under Section 313 Cr. P.C. The learned Sessions Judge has simply extracted the evidence of the prosecution witnesses at length, some of the questions are running into pages, without pointing out exact material against the accused. Many questions put to the accused under Section 313 Cr. P.C. by the Court below do not conform to the requirements of Section 313 Cr. P.C.”

107. We would like to refer to the judgment reported in AIR 2017 SUPREME COURT 2161 in the case of MUKESH AND ANOTHER VS. STATE FOR NCT OF DELHI AND OTHERS, with reference to para Nos. 135, 136, 431 and 436 which reads as herein under:

“…… 135. In the instant case, the recoveries made when the accused persons were in custody have been established with certainty. The witnesses who have deposed with regard to the recoveries have remained absolutely unshaken and, in fact, nothing has been elicited from them to disprove their creditworthiness. Mr. Luthra, learned senior counsel for the State, has not placed reliance on any kind of confessional statement made by the accused persons. He has only taken us through the statement to show how the recoveries have taken place and how they are connected or linked with the further investigation which matches the investigation as is reflected from the DNA profiling and other scientific evidence. The High Court, while analyzing the facet of Section 27 of the Evidence Act, upheld the argument of the prosecution relying on State, Govt. of NCT of Delhi v. Sunil and another[58], Sunil Clifford Daniel v. State of Punjab[59], Ashok Kumar Chaudhary and others v. State of Bihar[60], and Pramod Kumar v. State (Government of NCT of Delhi)[61].

136. On a studied scrutiny of the arrest memo, statements recorded under Section 27 and the disclosure made in pursuance thereof, we find that the recoveries of articles belonging to the informant and the victim from the custody of the accused persons cannot be discarded. The recovery is founded on the statements of disclosure. The items that have been seized and the places from where they have been seized, as is limpid, are within the special knowledge of the accused persons. No explanation has come on record from the accused persons explaining as to how they had got into possession of the said articles. What is argued before us is that the said recoveries have really not been made from the accused persons but have been planted by the investigating agency with them. On a reading of the evidence of the witnesses who constituted the investigating team, we do not notice anything in this regard. The submission, if we allow ourselves to say so, is wholly untenable and a futile attempt to avoid the incriminating circumstance that is against the accused persons.

.....

431. As noted in the above tabular form, various articles of the complainant and the victim were recovered from the accused viz., Samsung Galaxy Phone (recovered at the behest of A-2 Mukesh); silver ring (recovered at the behest of A-3 Akshay); Hush Puppies shoes (recovered at the behest of A-4 Vinay) and Sonata Wrist Watch (recovered at the behest of A-5 Pawan). Recovery of belongings of PW-1 and that of the victim, at the instance of the accused is a relevant fact duly proved by the prosecution. Notably the articles recovered from the accused thereto have been duly identified by the complainant in test identification proceedings. Recovery of articles of complainant (PW-1) and that of the victim at the behest of accused is a strong incriminating circumstance implicating the accused. As rightly pointed out by the Courts below, the accused have not offered any cogent or plausible explanation as to how they came in possession of those articles.

.....

436. Even though, the arrest and recovery under Section 27 of the Evidence Act is often sought to be misused, the courts cannot be expected to completely ignore how crucial are the recoveries made under Section 27 in an investigation. The legislature while incorporating Section 27, as an exception to Sections 24, 25 and 26 of the Evidence Act, was convinced of the quintessential purpose Section 27 would serve in an investigation process. The recovery made under Section 27 of the Evidence Act not only acts as the foundation stone for proceeding with an investigation, but also completes the chain of circumstances. Once the recovery is proved by the prosecution, burden of proof on the defence to rebut the same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making the recoveries, especially when the recovery is corroborated by direct as well as circumstantial evidence, especially when the investigating officer assures that failure in examining independent witness while making the recoveries was not a deliberate or mala fide, rather it was on account of exceptional circumstances attending the investigation process.”

108. Having considered both oral and documentary evidence available on record and also the principles laid down in the judgments referred Supra, it is clear that the Court below has committed an error in not considering the material available on record and only gave much importance to minor discrepancies with regard to arrest of the accused taking into consideration, the evidence of P.Ws.33 and 38. The Court below has mainly concentrated on Section 9 of the Evidence Act regarding test identification parade. No doubt, the test identification parade was conducted by the Taluka Executive Magistrate, who has been examined as P.W.29 and certain discrepancies were found in the test identification parade conducted, it is to be noted that the test identification parade does not play any pivotal role when there are ample material to prove the recovery of incriminating materials at the instance of accused. It is also pertinent to note that there are documentary evidence before the Court that after committing the murder of the deceased, both the accused took the card of the deceased and on the second day i.e., on 23.12.2006 itself, they have drawn the money to the extent of Rs.75,000/- i.e., an amount of Rs.70,000/- from Corporation bank at Kolar and an amount of Rs.5,000/- at KGF and also purchased various articles from different shops on the very next day i.e., on 23.12.2006 which is evident from the bills that have been produced before the Court. The witnesses, who have identified the accused Nos.1 and 2 were also taken to different shops to corroborate the same. When such being the case, even though there are minor discrepancies in the evidence of the prosecution regarding test identification parade, the Trial Court ought not to have magnified the same which has resulted in failure to consider the material available on record. The test identification parade is not a substantive piece of evidence and the remaining evidence available before the Court establishes each chain of link and proved the circumstances relied upon by the prosecution.

109. On careful consideration of both oral and documentary evidence, it is clear that there are several material against the accused persons to establish the fact that the belongings of the deceased were recovered at the instance of the accused and the accused persons have also made use of the card of the deceased. The accused after having committed the murder of the deceased have thrown the dead body of the deceased and have left the car of the deceased in a different place.

110. The prosecution witnesses have supported in all respects from the date of the incident i.e., 21.12.2006 and subsequent events. After the arrest of the accused persons, the witnesses have identified the accused and have been taken to different shops where the accused persons have purchased various articles which are also marked as material objects. The enormous materials available before the Court have not been considered by the Trial Court in a right perspective. Hence, the findings of the Trial Court are perverse. It has ignored the material available on record that murder was committed for wrongful gain.

111. No doubt the accused No.1 is the master mind in committing the offence and he is no more and the case against him is abated, that itself is not a ground to acquit accused No.2. When incriminating materials are available before the Court against accused No.2; the Court below has failed to appreciate the prosecution case. Hence, it is a fit case to reverse the findings of the Trial Court and set aside the judgment of acquittal.

112. Having considered the material available on record, it discloses that for wrongful gain, the murder was committed and dead body was thrown. The accused persons have also left the car in a different place and thereafter, used ATM card belonging to the deceased for purchase of clothes and other articles. The manner in which the murder was committed is a heinous offence and it requires an appropriate sentence and if appropriate sentence is not awarded, the very purpose would be defeated. Hence, it is appropriate to impose rigorous imprisonment with fine, keeping in view the provisions of Sections 357 and 357(A) of the Criminal Procedure Code to compensate the victim, who lost her husband at the early age. Hence, appropriate fine also has to be imposed against the accused.

113. In view of the discussions made above, we pass the following:

ORDER (i) The appeal filed by the State is allowed.

(ii) The judgment passed in S.C.No.724 of 2007 dated 21.03.2013 on the file of the Principal City Civil and Sessions Judge, Bengaluru is set aside.

(iii) The accused No.2 is convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to undergo rigorous life imprisonment and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for 1 year. On deposit of fine amount, the same shall be paid to the wife of the deceased, P.W.21 on proper identification.

Sd/- Sd/-

JUDGE JUDGE ST/BKP/MD