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.835 OF 2013 BETWEEN:
STATE BY AREHALLI POLICE STATION BELUR TALUK HASSAN DISTRICT. ... APPELLANT (BY SMT.NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) AND:
1. PRABHAKARAN SON OF KELASELVAM AGED ABOUT 27 YEARS DIPLOMA MECHANICAL ENGINEER PALAPATTI VILLAGE NAMAKAL TALUK TAMILNADU-637 001.
2. SARAVAN SON OF SUBRAMANYA AGED ABOUT 31 YEARS AUTO DRIVER RESIDING AT NO.56 MODALIYAR STREET PURUNDURAI ERODE TALUK TAMILNADU-638 001.
3. ASHOK SON OF BASAVANNA AGED ABOUT 34 YEARS HAMALI WORK HALALLI VILLAGE KOLLEGAL TALUK PRESENTLY RESIDING BEHIND SYNDICATE BANK CHIKKAMAGALURU-577 102. ... RESPONDENTS (BY SRI.P.NEHRU, ADVOCATE FOR RESPONDENTS 1 AND 2) 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 ORDER OF ACQUITTAL DATED 27.04.2013 PASSED BY THE PRESIDING OFFICER AND ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-I, HASSAN IN SESSIONS CASE NO.38 OF 2010 – ACQUITTING THE RESPONDENTS/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 394, 201 READ WITH SECTION 34 OF INDIAN PENAL CODE.
THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 23.08.2019, THIS DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the State challenging the judgment of acquittal passed against accused No.2 to 4 in S.C.No.38/2010 dated 27.4.2013 on the file of Additional Sessions Judge & Fast Track Court-I, Hassan.
2. Brief facts of the prosecution case are:
On 6.8.2009, accused persons have approached deceased Sanjeev Shetty, the driver of taxi and booked his taxi to visit Halebidu and Beluru. At 9.00 p.m., near the coffee plantation, accused asked the driver to stop the car, at that time, accused No.2 took nylon belt and tied the same around the neck of the deceased and other accused held hands and legs of the deceased and committed his murder. After committing the murder, they took away the car of the deceased. Further, with an intention to screen the evidence, they put the dead body into the drainage and covered the same with shrubs. The police have registered the case against four unknown persons and thereafter, apprehended the accused and recorded their voluntary statements. The car and mobile phone of the deceased was also recovered and identification parade was conducted. Thereafter, the Investigating Officer who conducted investigation after collecting all the relevant documents has filed the charge sheet for the offences punishable under Sections 302, 394, 201 read with Section 34 of Indian Penal Code.
The accused persons were secured before the Court and they did not plead guilty and claimed to be tried. Hence, prosecution examined P.Ws.1 to 23 and got marked Exs.P1 to P28 and also produced 9 material objects. The Court below, after closure of the prosecution witnesses, recorded statement of the accused under Section 313 of Cr.P.C. Thereafter, accused did not chose to lead any evidence. Having heard the arguments of the learned State Public Prosecutor and also the defence counsel, Court below has convicted accused No.1 and acquitted accused Nos. 2 to 4. Hence, the State is before this Court in this present appeal.
3. In the appeal memorandum, it is contended that P.Ws.1 to 4 have stated in their evidence that these accused persons came to taxi stand and engaged the services of the taxi belonging to the deceased. P.Ws.1 to 4 have deposed that the accused No.4 participated in the commission of the offence and he was in possession of the mobile belonging to the deceased and the same was seized by the Investigating Officer in the presence of panchas. After committing the murder of the deceased, all the accused took the car of the deceased to Perambudurai village of Tamil Nadu and the police have seized the said car. In spite of ample evidence against all the accused persons, the Court below has committed an error in acquitting accused Nos.2 to 4. All the accused have participated in the commission of the offences. The main witnesses P.Ws.1 to 4 and 10 have seen the accused talking to the deceased at Mudigere taxi stand. All of them have identified accused persons during the identification parade. The Court below, without any basis, held that the identification parade is not reliable. The accused persons have failed to offer any explanation and also failed to discharge their burden to deny the case of the prosecution. The Court below based on the evidence of P.Ws.1 to 4, P.Ws.10 and 20 convicted accused No.1 and erred in not considering the evidence placed on record against other accused persons. Even though the prosecution has proved the case beyond all reasonable doubt, the trial Court ought not to have discarded the evidence of the witnesses produced in respect of accused Nos.2 to 4.
4. Learned High Court Government Pleader appearing for the State in her arguments would contend that P.Ws.1 to 4 and 10 have identified the accused persons during the test identification parade conducted at Hassan jail. The Tahsildar who conducted the Test identification parade also categorically deposed how it was conducted. The Court below has erred in coming to the conclusion that the test identification parade was not properly done. It has failed to take note of the fact that the car was recovered at the instance of accused No.1 and R.C. book was recovered at the instance of accused No.2.
The mobile phone of the deceased was recovered at the instance of accused No.4. The Court below, in spite of sufficient evidence available before the Court, has committed an error in distinguishing the evidence available on record considering the same against accused No.1 and discarding the evidence as against accused Nos.2 to 4. Hence, the findings of the trial Court requires to be reversed and accused Nos.2 to 4 have to be convicted for the offences alleged against them. The learned Government Pleader would also contend that accused No.1 who has been convicted has not filed any appeal as against the order of the Court below, which substantiates the fact that all these accused persons have committed the murder of the deceased. Though, at the first instance, case was registered against four unknown persons, but it is specific that all the four accused persons came and took the car. The evidence of the prosecution also substantiates the same. Hence, prayed this Court to set aside the judgment of acquittal.
5. Per-contra, learned counsel appearing for the accused Nos.2 to 4/respondents would contend that the evidence of P.Ws.1 to 4 and 10 is not consistent. The test identification parade is not conducted in accordance with law. The recovery of the car is not at the instance of accused No.3 as contended by the prosecution and the same was not in the premises of accused No.3. The other accused persons have been falsely implicated in the case. The evidence of P.W.15 is also not helpful to the case of the prosecution and there are material contradictions in the evidence of the prosecution witnesses. Hence, there are no grounds to reverse the findings of the trial Court.
6. In reply to the arguments of learned counsel for the respondents, learned High Court Government Pleader would contend that the evidence of the prosecution is consistent. Even in the test identification parade the accused persons were identified by the witnesses. Ex.P28, the toll receipt discloses that at 5.15 a.m. the car was taken towards Krishnagiri. The very contention that there is variation in the test identification parade is not correct. The test identification parade Exs.P3 to 6 and 9 clearly discloses that each of the witnesses have identified all the accused persons and hence, there are no grounds to disbelieve the case of the prosecution.
7. Having heard the arguments of learned High Court Government Pleader appearing for the appellant-State and the learned counsel appearing for the respondents, the points that arise for our consideration are:
(i) Whether the Court below has committed any error in acquitting accused Nos. 2 to 4 and whether it requires interference of this Court?
(ii) What order?
8. Point No.1:
Before re-appreciation of both oral and documentary evidence on record, we would like to consider the material evidence available with regard to accused Nos.2 to 4, since the present appeal is filed challenging the order of acquittal of accused Nos.2 to 4.
9. The prosecution mainly relies upon the evidence of P.Ws.1 to 4 and 10, the eyewitnesses and their Test Identification Parade evidence. The evidence of these witnesses is similar. Hence, the chief evidence of these witnesses is taken together for consideration. These witnesses, in their evidence, have stated that on 6.8.2009 around 3.00 p.m. all the accused persons came to taxi stand at Mudigere. The deceased was running the taxi belonging to P.W.5 Narayan Shetty. The accused persons booked the taxi to go to Belur and Halebidu. The deceased demanded Rs.1,200/- and after negotiation, it was settled at Rs.1,100/-. It is also their evidence that around 8.30 p.m. P.W.5 called P.W.1 and enquired that deceased did not return and hence, P.W.1 and P.W.5 have searched for the vehicle and also the deceased and they did not find the vehicle. In the morning they came to know that a body was lying near Cheekanahalli of Belur taluk and on suspicion, all of them went to the spot and identified the body as that of Sanjeeva Shetty. They found nylon belt on the neck of the deceased and body was lying in the drainage and was covered with shrubs. They did not find the car at the spot. P.W.1 states that he gave the complaint as per Ex.P1 and the police have conducted mahazar in terms of Ex.P2. Police also conducted the inquest and subjected the body for post mortem. Later, after 3-4 days, they came to know that car was found at Tamil Nadu. Witnesses have identified accused Nos.1 to 4 before the Court. P.Ws. 1, 2 and 4 also states that they went to jail and participated in the test identification parade. The evidence of P.W.10 is also similar to that of P.Ws.1 to 4. He also participated in the test identification parade and identified all the accused persons.
10. Now let us consider the cross-examination of each of the witnesses.
11. In the cross-examination of P.W.1 on behalf accused Nos.2 to 4 it is elicited that tourists used to visit taxi stand and book the taxi. On that day, P.Ws.1 to 4 were in taxi stand since the respective taxis were not booked. Usually, there would be around 30-40 taxis parked in the said place. Other than the taxies of P.Ws.1 to 4, 15 other taxies were there in the taxi stand. His taxi was fourth taxi from the taxi of the deceased. There were no driver in the taxies which were parked in between his taxi and the taxi of the deceased and the other taxi drivers were standing near the taxi of deceased Sanjeev Shetty. He admits that Sanjeev Shetty is his friend. It is suggested that 15 days prior to this incident, galata had taken place between the owner of Mudigere hotel and the deceased, the same was denied. All of them have seen the body of the deceased at 9.30 a.m. He gave the complaint at the spot it terms of Ex.P1 in presence of police. He admits that in the complaint it is not mentioned that PWs.2 to 5 were also running the taxi. He further admits that in his complaint he did not mention that PWs.2 to 4 were also present when the talks were held for hiring the taxi. It is suggested that he does not know the contents of the Ex.P1 and the same was denied. He admits that he along with PWs.2 to 5 saw the taxi in the police station. When he went to the police station, he came to know that accused persons were arrested and thereafter police did not call him. He admits that he has not given the identification of the accused persons in the complaint. He states that he saw the accused persons when they were talking to the deceased. He further states that while conducting the test identification parade, they made ten persons to stand in a row and he identified one accused and in each of the test identification parade, there were ten persons. Accordingly, four rounds of identification parade was held and every time he was called to identify the accused persons and he identified the accused persons. He identified his signatures as Ex.P3(a) to (d). Accused No.2 was identified by him as third person in the second line and that he was wearing spectacle. It is elicited that photographs appeared in the local newspaper and the test identification parade conducted, he identified the accused persons.
12. P.W.2 in his cross-examination admits that normally taxies will not be there in the stand for a long time. When people came to book the taxi with the deceased Sanjeev Shetty, they were talking in Kannada and he volunteers that one person was negotiating with the deceased in Kannada. The talks were held for six to seven minutes. This witness was not having any prior acquaintance with the said persons. He states that the taxi of the deceased was parked next to his taxi and other taxis were parked at a little distance. They searched for the taxi between 9.00 and 9.30 a.m., he came to know about the incident through his friends. They went to spot between 9.45 and 10.00 a.m. He states that he gave description of all the four accused persons before the police. It is elicited in the cross-examination that after six months of the incident he went to Hassan jail and participated in the test identification parade. He admits that it appeared in the newspaper that accused persons were arrested and photographs were published in the newspaper. It is elicited in the cross-examination that they were waiting for 15 minutes outside the jail and among them, one Jagadeesh was called at the first instance. One hour was taken for the test identification parade. Thereafter, they went to Mudigere. He identified his signatures as per Exs.P3(e) to (h). The police asked on what basis he identified the accused and he replied that he had seen the accused persons when they came to hire taxi and on that basis he identified them. He identifies accused No.3 in the further chief-examination since he was absent on earlier date of examination. He contends that he saw accused No.3 in the jail also. He admits that while coming out of jail after test identification parade, it was around 4.00 to 5.00 p.m.
13. In the cross-examination of PW3, he has stated that when he went to spot to see the dead body, other people had also gathered. He saw the dead body around 11.00 a.m. It is suggested that drivers of the taxi used to sit in their respective vehicles expecting the customers. It is suggested that he did not make the statement before the police that all of them were sitting in the same taxi at the time of talks between the deceased and accused, the said suggestion was denied. He also admits that it was published in the newspaper that accused persons were apprehended. The said photographs were seen by himself and his friends Prashanth, Jagadish and Ramesh. He was not having any prior acquaintance with the accused persons.
14. P.W.4 in his cross-examination admits that there is a taxi stand in Mudigere and public move around near the said place. He admits that it was published in the newspaper that accused persons were apprehended and he had seen the said photographs. He states that all the four witnesses were made to sit in a separate room. While conducting test identification parade each one of them were called separately. He cannot tell who was called first to identify the accused. It is suggested that he did not identify any of the accused and the same was denied.
15. In the cross-examination of P.W.10 he admits that all of them i.e., P.Ws.1 to 4 and himself came to Hassan jail for test identification parade. They were made to sit in one room and he cannot tell where the accused persons were there at that time. Prem Kumar was called first and he returned within 10 minutes. Thereafter Ilias was called and he also returned within next ten minutes. Thereafter, other two persons went and came back within next ten minutes. P.W.10 was called as fourth person. He admits that in each of the test identification parades two persons were retained and remaining other persons were changed for identification.
16. P.W.5 is the owner of the car in question and is also the relative of deceased Sanjeeva Shetty. In his evidence he states that deceased was working as a driver for his car. His evidence is only with regard to the car entrusted to the deceased. Further evidence is that the deceased called him and instructed him to furnish IMEI number and accordingly he sent the same.
17. P.W.7 is the witness for the spot mahazar.
18. P.W.8 is the brother of deceased Sanjeevashetty.
He states he found the body of the deceased with nylon belt tied on the neck.
19. P.W.9 has prepared the sketch of the spot.
20. P.W.11 is the doctor who conducted the post mortem of the body of the deceased and there is no dispute with regard to cause of death.
21. P.W.12 is the Tahasildar of Belur Taluk. He conducted the test identification parade. He states that he instructed the Inspector to bring the witnesses to Hassan sub-jail on 6.10.2009 and had also given instructions to the Jail Superintendent. Accordingly, he went to jail and conducted the test identification parade. The witnesses were made to sit in a room of the jail. He had given instructions to bring accused persons along with other accused persons who were either of the same age group or of the similar height of that of accused persons to conduct test identification parade. On that day, they conducted five rounds of test identification parade. In each round one accused person was made to stand along with five other persons. He had given instructions to change the place of the accused person in each round of identification parade. He took the assistance of his official while conducting test identification parade.
In the first round of test identification parade, witness Premkumar identified the accused Nagaraj as the fourth person standing in the row along with Dasappa, Revannashetty, Siddalingaiah, Nagaraj, Ramesh and Mahalingappa. He took the signature of Premkumar as per Ex.P4(a). Thereafter, witness Ramesh was called and accused Nagaraj was made to stand as third person in the row. He also identified accused Nagaraj and his signature is as per Ex.P9(a). The very same accused Nagaraj was made to stand as fifth person and witness Jagadish was called and he also identified the accused Nagaraj as fifth person and his signature is as per Ex.P3(a). Thereafter, accused Nagaraj was made to stand as second person in the row and witness Prashanth was called and he also identified the accused Nagaraj as the second person in the row and his signature was taken as per Ex.P3(a).
22. The second round of test identification parade is in respect of accused Prabhakar. Witness Premkumar identified the accused Prabhakar as the first person in the row who was standing along with accused Girish, Vijaykumar, Manjunath, Harish and Ravi. He took the signature of the witness as per Ex.P6(a). Thereafter, accused Prabhakar was made to stand as fifth person in the said row and witness Ramesh was called and he also identified accused Prabhakar as the fifth person standing in the row. The signature of the witness was taken as per Ex.P11(a). Thereafter, accused Prabhakar was made to stand as third person in the row and witness Jagadish was called and he also identified the accused and his signature was taken as per Ex.P3(a). The accused Prabhakar was made to stand as fourth person in the row and witness Prashanth was called and he also identified the accused and his signature was taken as per Ex.P3(g).
23. In the third round of test identification parade accused Saravana was made to stand along with Kumara, Srinivasa, Syed Mubeen, Raaghu and Nagaraj. Witness Premkumar identified the accused as fourth person in the said row. His signature was taken as per Ex.P5(a). The accused Saravana was made to stand as fifth person in the row. Witness Ramesh identified him as the fifth person. His signature was taken as per Ex.P12(a). The accused Saravana was made to stand as third person and witness Jagadish was called and he identified the accused as third person. His signature was taken as per Ex.P3(a). The accused Saravana was made to stand as second person in the row. Witness Prashanth identified him as second person and his signature was taken as per Ex.P3(h).
24. In the fourth round of test identification parade, accused Ashok was made to stand as fifth person along with Shekar, Mallikarjun, Nawaz, Amzad and Dinesh. Witness Premkumar identified him and his signature was taken as per Ex.P3(a). The accused Ashok was made to stands as second person and witness Ramesh identified him. His signature is as per Ex.P9(a). The accused Ashok was made to stand as fourth person and witness Jagadish identified him. His signature is taken as per Ex.P3(d). The accused Ashok was made to stand as first person. Witness Prashanth identified him and his signature is taken as per Ex.P3(e).
25. After identification of the accused persons by the witnesses they were asked as to on what basis they identified them and all of them told that they had seen the accused persons at the time of boarding the taxi and also while negotiating with the deceased Sanjeeva Shetty. All the witnesses state that at the time of test identification parade no police officers and jail officials were present.
P.W.12 certifies the same.
26. In the cross-examination of P.W.12 he states that the witnesses were made to sit after three rooms of the place where test identification parade was conducted. It is suggested that he did not mention the timings of each of the test identification parades, for which, he states that after identification of each of the accused persons he has mentioned the timings. First round was conducted from 3.00 to 3.10 p.m., second round from 3.10 to 3.20 and remaining test identification parade was also completed within 10 minutes. It is suggested that clothes of the accused persons were not changed and the same was denied. However, he admits that the same is not mentioned in the report. It is suggested that after identification of each of the accused persons, he did not change the order of accused and the said suggestion was denied. It is suggested that police have shown the accused persons to the witnesses prior to the test identification parade and the said suggestion was denied.
27. P.W.15 is the mahzar witness, who identifies his signatures in Exs.P17 and P18. P.W.15 states that he has signed the mahazar in front of the house of accused- Saravana and the other witness, Ningaraju has also signed the mahazar. He also states that the Police took him and Ningaraju to Tamil Nadu. The accused No.1, who was in the station was taken along with them and he showed the place of mahazar. The accused No.1 also showed the car which was parked in front of the house of Saravana. He came to know that the said car was robbed after committing the murder of the deceased. In the house of the accused-Saravana, the other accused-Prabhakara was also there. The witnesses have identified both of them. The Police have seized the mobile and R.C. book from the accused-Saravana and drawn the mahazar. He identifies the R.C.book as Ex-P17 and his signature as Ex-P17(a). He also identifies the mobile as M.O.7. In the cross examination of P.W.15, it is elicited that, on that day, he himself, Ningaraju, driver of the car and three police personnel went to Tamil Nadu. It is suggested that, he falsely deposed that accused No.2-Prabhakara was in the said village when he went to police station and the said suggestion was denied.
28. P.W.18-Head Constable, Sakleshpura Rural Police Station in his evidence states that he received Ex.P1 and registered the case in Crime No.102 of 2009. Thereafter, registered the First Information Report and sent the same to the Court.
29. P.W.19 is the Assistant Sub-Inspector of Police, who in his evidence states that on information, he went to the spot and found the dead body which was covered with shrubs and received the complaint in terms of Ex.P1. He identifies the nylon belt which was found on the neck of the deceased as M.O.1.
30. P.W.20 in his evidence states that when he received the information that a dead body is found near Cheekanahalli, he has sent the Assistant Sub-Inspector of Police to the spot. He went to the spot and received the complaint in terms of Ex.P1 and thereafter, he conducted inquest and handed over the body to post mortem and mahazar was drawn in terms of Ex.P2. He recorded the statement of the witnesses and states that photos were taken. He also seized the clothes of the deceased in terms of Ex.P15. The IMEI number of the mobile was also collected and sought the assistance of the Nodal Officer to find out the same. On verification, the Nodal Officer on 12.08.2009 gave the information that the same is standing in the name of one Gangadhara. The said person was called and he told that the said sim was taken in his name and thereafter was given to accused No.1. Based on that information, the accused persons were apprehended. The mobile of the accused No.3 was seized by drawing mahazar in terms of Ex.P16. The said IMEI number was tallies with the sim card. Mahazar was drawn in the presence of witnesses, Zuber and Subramanya. The accused was produced before the Court and thereafter was taken to custody.
31. That on 23.08.2009, they went to Tamil Nadu along with panchas. The accused No.1 showed the house of Saravana and they found the accused-Saravana and Prabhakara and they were taken to custody and recorded their voluntary statement. The car was also seized which was parked by the side of the house of Saravana. The mobile of Saravana was also seized by drawing mahazar in terms of Ex.P16. He identifies the mobile as M.O.7 and car as M.O.6. The accused-Prabhakar gave his voluntary statement and produced R.C. pertaining to the very same car. The R.C. book was seized and the same is marked as Ex.P24. The mobile of the accused-Prabhakara was also seized and the same is marked as M.O.9. Mahazar drawn in the said place is marked as Ex.P18.
32. That on 24.08.2009, the accused-Ashoka was apprehended by Arehalli Police and he also gave voluntary statement. His mobile hand set was seized. The IMEI number is also collected. The said mobile is marked as M.O.8. The accused No.4 states that the same belongs to the deceased. The mahazar was drawn in terms of Ex.P19. The witnesses Dharmachari and Ramesha have signed the said mahazar. He also sought the call details of the mobile from the Nodal Officer and obtained the same. The seized belt was sent to the Medical Officer to give his opinion. He has opined that the said nylon belt could cause the death. The call details are marked as Ex.P25. Thereafter, he has requested the Executive Magistrate to conduct the Test Identification Parade and the same was conducted on 06.10.2009 at the Hassan Jail. He has also obtained call details of mobile No.’9535734042’ in terms of Ex.P26. The call details clearly indicates that the same belongs to the accused and there were entries to the effect that the accused-Prabhakara has also conversed with him. From the said call details, it is clear that prior to committing the murder, the accused-Nagaraj has conversed with accused-Saravana and Prabhakara and information was also collected in terms of Ex.P27.
33. P.W.20 was also subjected to cross examination.
It is suggested that he did not record the statement and further statement of the witnesses, the same was denied. It is suggested that accused No.1 did not collect the sim from Gangadhara and the same was denied. It is elicited that he did not enquire the description of the accused. It is suggested that witnesses Jagadish, Ramesh, Ilias, Prashanth and Premkumar have not given any statement that all of them were sitting in one car and the said suggestion was denied. He states that all of them told that they were sitting in the car belonging to the deceased Sanjeeva Shetty. It is suggested that the IMEI number given by witness P.W.5 was not tallying with the mobile set which was seized and the same was denied. It is elicited that accused Nos.2 and 3 were only knowing Tamil and not any other language and the same came to his knowledge during the course of investigation. It is elicited that the witnesses, who gave the statement did not mention that the accused persons are not from Karnataka and they were talking in Tamil. It is elicited that he did not record the statement of persons, who know both Kannada and Tamil, while recording the voluntary statement of accused persons. It is elicited that accused-Prabhakara is the resident of Namakkal Village which is situate at the distance of 150 kilo meters from the house of accused- Saravana. But he did not question him why he was in the house of Saravana. It is elicited that, after the voluntary statement of accused-Saravana and Prabhakara, he has seized the R.C. book. Based on the voluntary statement of accused No.2, R.C. book and mobile was seized. It is suggested that based on the voluntary statement of accused No.2, nothing was seized, the same was denied. It is elicited that the mobile which was seized at the instance of accused-Ashoka was not standing in the name of the deceased. The witness volunteers to state that the same was standing in the name of sister of the deceased and he did not obtain the call records. It is suggested that M.O.9 was not seized at the instance of accused No.9 and the same was denied. It is suggested that photos of the accused persons were published in the newspaper and the same were shown to P.Ws.1 to 5 and the same was denied. But he claims that when the photos were published in the newspaper, their faces were covered. It is suggested that the photos of the accused persons were shown to P.Ws.1 to 5 before bringing the accused persons to Tamil Nadu and the same was denied. It is suggested that accused No.1, did not take him to Tamil Nadu and showed the house of accused No.3 and the said suggestion was denied. It is suggested that mobile was not seized from the accused No.3 and the same was denied. This witness was further cross-examined and got marked the document received from the National Highway Authority through post as Ex.P28. In the cross examination, it is elicited that the signature for having obtained the document through post is marked as Ex.P28. He states that before going to Tamil Nadu, he has requested the National Highway Authority to furnish the toll details. But he does not remember whether he visited the said toll while going to Tamil Nadu and coming back. He did not obtain any supporting document to Ex.P28 and did not record the statement of the persons of the said toll.
34. P.W.21 is the Police Inspector, who was deputed to go to Tamil Nadu and Circle Inspector of Police also accompanied with him. They left Belur on the same day along with accused No.1 and Panch witnesses. Accused No.1 showed the house of Saravana and in the said house, both Saravana and Prabhakara were found. The voluntary statement of both the accused was recorded and he himself translated the same to Kannada language from Tamil. The car and mobile set was seized in terms of Ex.P17. He also identifies M.Os.6 and 7. The R.C book and mobile set of accused-Prabhakara was seized by drawing mahazar in terms of Ex.P18. He was subjected to cross examination and in the cross examination, it is elicited that, accused No.1 gave the information that other accused persons were not knowing Kannada. It is elicited that when both the accused-Saravana and Prabhakara were arrested, no separate mahazar was drawn. It is elicited that they did not obtain the signature of local persons. It is elicited that, the car was not inside the premises of the accused-Saravana and the same was beside the compound. It is suggested that he is falsely deposing that he translated the same from Tamil to Kannada and the said suggestion was denied. It is suggested that accused-Prabhakara was not arrested in the house of Saravana and the same was denied. It is suggested that they did not go to Tamil Nadu and the same was denied.
35. P.W.22 is a Police Constable, who carried the First Information Report to the Court.
36. P.W.23 is the sister of the deceased. She in her evidence states that the deceased-Sanjeeva Shetty is her brother-in-law. She has purchased the sim when she was in Kodimbaale Village of Puttur Taluk. She has given the address while purchasing the sim which is mentioned in Ex.P25. She also stated that the same was used by her earlier and subsequently, she has given the same to her brother-in-law. The sim was purchased four years prior to the death of her brother-in-law. She has telephoned to her brother-in-law one day prior to his death. It is suggested that she did not purchase the said sim card and the same was denied.
37. Having considered both the oral and documentary evidence of the prosecution and also the contentions of both the learned counsel for the State and the defence/accused, this Court has to re-appreciate the material on record.
38. Now, the question before us is, whether the Court below has committed an error in acquitting accused Nos.2 to 4 since the same has been challenged by the State ? The main contention of the State is that the Court below convicted accused No.1 considering the material on record, but while acquitting accused Nos. 2 to 4 did not accept the evidence of prosecution which is erroneous.
39. On the other hand, learned counsel appearing for the defence vehemently contends that the evidence of P.Ws.1 to 4 regarding identification of accused is not consistent. The Test Identification Parade has not been conducted in accordance with law. The other circumstance like recovery of car is not at the house of accused No.3. Accused Nos. 2 to 4 have been falsely implicated in the case. The evidence of P.W.15 is not helpful to the case of the prosecution. Hence, the Court below rightly acquitted accused Nos.2 to 4.
40. The prosecution mainly relied upon the evidence of P.Ws.1 to 4 and 10. According to the prosecution, these witnesses have specifically deposed that they have seen these accused persons and also identified the accused persons when the Test Identification Parade was conducted by P.W.12-Tahsildar. The prosecution also relied upon evidence of PW.14, mahazar witness with regard to the seizure of mobile of the deceased from accused No.1. The prosecution also relied upon the evidence of P.W.15 mahazar witness regarding the seizure of car at the instance of accused No.3 and also seizure of R.C. book from accused No.2 when both of them were in the house of accused No.3.
41. The other contention of prosecution is that accused No.1 led PWs.20 and 21 to the house of accused No.3 and thereafter, in the presence of P.W.15, both the car and R.C. book were seized from accused Nos.3 and 2 respectively. The prosecution also relied upon the documentary evidence viz., Exs.P.26 to 28, IMEI call details of accused Nos.1 to 3.
42. Now let us consider the evidence with regard to the Test Identification Parade of accused persons. P.Ws.1 to 4 and 10 have deposed that four unknown persons came to the taxi stand and booked the car. P.W.1 gave the complaint in terms of Ex.P.1 that at the first instance, four accused persons came and took the car. P.W.1 also in his evidence states that he can identify those persons. The Test Identification Parade was conducted by P.W.12-
Tahsildar. P.W.12 also reiterates the evidence of P.W.1.
P.W.3 did not participate in the Test Identification Parade but P.W.4 participated in the Test Identification Parade. It is to be noted that in the cross examination of P.W.1, he states that himself and P.Ws.2 to 4 were together when accused persons came and booked the car belonging to the deceased to go to Belur and Halebeedu. He categorically admits that he identified the accused persons in the Test Identification Parade. It is suggested that there was an ill- will between the hotel owner and the deceased and the same was denied. However, he categorically denied that all of them were sitting in the car of the deceased. It is pertinent to note that he admitted that photos of the accused persons appeared in the local newspaper and he had seen the same. He also claims that while identifying the accused persons, ten persons were made to stand together. There is a contradiction in the evidence of P.Ws.1 to 3 and 10 regarding total number of persons while conducting the Test Identification Parade. It is pertinent to note that P.W.2 in the cross examination admits with regard to the Test Identification that photo appeared in the local newspaper, but he claims that he did not see the said photograph in the paper. He states that one of the accused persons was talking in Kannada. He categorically states that he had developed the habit of reading paper. He categorically admits that the police have published photos in the newspaper when the accused were arrested. The very answer elicited from the mouth of P.W.2 is contrary. In his evidence, he volunteers that he did not see that paper publication. P.W.3 is not the witness of Test Identification Parade. In his cross examination, he admits that the paper publication was made that accused persons were arrested. He categorically admits that he has seen the said photos along with his friends Jagadish (PW.1), Premkumar (PW.4) and Ramesh (PW.10). The other witness P.W.4 in his evidence he admits that the photos were published in the local paper and he also volunteers that he did not see the report.
43. Having considered the material on record, it is clear that the accused persons were arrested and the same was published in the local newspaper along with photos. The Investigating Officer who has been examined as P.W.20 also admits that the same appeared in the news paper. But he claims that a mask had been covered on the face of the accused and the same was published. The evidence of P.Ws.1, 2, 4 and 10 is clear that the photo appeared in the news paper. Though P.W.2 and 4 claims that they did not see the news paper, it is clear that photo was published immediately after their arrest. Hence, we are of the opinion that the Court cannot rely upon the Test Identification Parade. However, it is clear that there were four persons who came to taxi stand and took the car belonging the deceased to go to Belur and Halebeedu. The Court below has not committed any error in not accepting the Test Identification Parade.
44. Now, the Court has to consider the other material on record. It is the evidence of the Panch Witness who has been examined as P.W.15 that accused No.1 led the PW.20 - Investigating Officer and also the other police official namely Pw.21 and pointed out the house of accused No.3 – Saravana. In that house, accused No.3 and accused No.2 Prabhakar were in the house. Both of them were apprehended and they have given voluntary statement. At the instance of accused no.3, mobile and car was seized. P.W.15 also says accused No.2 was having the R.C. book of the car and the same was seized. The prosecution also relied upon the evidence of Investigating Officers-PWs.20 and 21 and both of them have deposed that accused No.1 after his arrest, led the team to Tamil Nadu and showed the house of accused No.3. It is pertinent to note that in the cross examination of PW.15 by the learned counsel for accused Nos.2 to 4, it is elicited that on that day, three police officials, himself and other Panch witness - Ningaraju and driver went to Tamil Nadu. He categorically states that accused No.1 showed the house of accused No.3 and also showed the car which was parked in front of the house of accused No3. He categorically admits that he was not aware of the place in which mahazar was drawn. He cannot say whether they brought M.O.No.6-car or not. It is suggested that he is falsely deposing that accused No.2 was in the house of accused No.3 and the said suggestion was denied. It is suggested that he has signed Exs.P.16 and 17 at Belur police station and the same was also denied. However, he states that he did not speak to the accused persons. It is suggested that he is falsely deposing that while drawing Ex.P.17 R.C. book and M.O.7 – mobile were seized and the said suggestion was denied. Nothing is elicited in the cross examination of PW.15 to disbelieve the evidence of PW.15 regarding seizure of car, mobile and R.C. book at the instance of accused Nos.3 and 2 respectively. The Investigating Officer who took the accused and also the Panch witnesses has reiterated in his evidence that panch witnesses accompanied them to the house of accused No.3 where the car and mobile were seized from accused No.3, R.C. book was seized from accused No.2 by drawing mahazar. The witness who has been examined as PW.15 also identifies the signature in Ex.P.17 – mahazar. In the cross examination of PW.20, it is elicited that accused Nos.2 and 3 have given their voluntary statement. He also states that in Ex.P27, the telephonic conversation that took place between accused Nos.1 to 3 was also another circumstance to prove that all of them conspired each other and committed the offence. However, in the cross examination, it is suggested that he has falsely deposed that accused No.1 led all of them to Tamil Nadu and the said suggestion was denied. In the cross examination of PW.20 by the learned counsel for accused Nos.2 and 4, it is elicited that he did not record the statement of the local persons knowing both Kannada and Tamil while seizing the car. It is also elicited that accused No.2 is the resident of Namakkal village which is at a distance of 150 Kms from the residence of accused No.3. He categorically states that he did not enquire as to why accused No.2 came to the house of accused No.3. He categorically states that R.C. book and mobile was seized after the voluntary statement of accused No.2. It is suggested that according to the statement of accused No.2 nothing was seized, and the same was denied. It is further suggested that Ex.P.24 R.C. book was created in the Police Station and the same was denied. PW.20 in the cross examination by learned counsel for accused No.3 admits that he did not collect the details of the house in which accused No.3 was residing. It is also suggested that accused No.3 was not staying in the house as tenant and the same was denied. He claims that he has mentioned the name of the owner of the house. He categorically admits that he did not record the statement of witnesses of the neighbouring house.
45. It is to be noted that PW.21 who accompanied the panch witness and also the Investigating Officer to Tamil Nadu reiterates the evidence of PWs.15 and 20. In the cross examination, he admits that no separate mahazar was drawn for the arrest of accused Nos.2 and 3. He further admits that the car was not within the premises of accused No.3. It is suggested that accused No.2 was not arrested in the house of accused No.3, the same was denied.
46. Having considered the evidence of PW.15 - Panch witness and PWs.20 and 21- Investigating Officers, it is clear that all of them went to Tamil Nadu and it is the specific case that accused No.1 led the team and showed the house of accused No.3. It is also important to note that in the evidence of PW.1 and also in his complaint he has specifically stated that four persons came and took the car at Moodigere taxi stand. Hence, it is clear that the offence was committed by four persons and accused No.1 was apprehended based on the Mobile IMEI Number. PW.6 with whom accused No.1 was working, categorically states that he only got the mobile to accused No.1.
47. The prosecution also relies upon the document Ex.P.28 which was secured by PW.20 - Investigating Officer that is the toll extract of the car which was robbed and proceeded towards Tamil Nadu at the Krishnagiri Toll at 5:00 a.m. on the next day of the murder. That the car was seized in Tamil Nadu at the instance of accused No.3 and the same has been consistently deposed by PWs.15, 20 and 21. All of them went along with accused No.1 and accused No.1 only showed the house of accused No.3 and the car was seized in front of accused No.3 and accused No.2 was also in the residence of accused No.3. R.C. book was also seized at the instance of accused No.2 and separate mahazar was drawn as per Ex.P.17 and 18 for seizure of car and R.C. book and their respective mobiles.
48. Though the prosecution secured Ex.P.27 call details of accused Nos.1 to 3, it is pertinent to note that since the nodal officer was not examined, the same cannot be taken into consideration. However, the evidence of the prosecution with regard to seizure of car and R.C. book at the instance of accused Nos.2 and 3 and the same is clinching evidence to come to the conclusion that the car and R.C. book were seized. No doubt, it is elicited in the cross examination of PW.20 that he did not collect the house particulars of accused No.3.
49. Merely because the Investigating Officer has not collected the house details, the same is not fatal to the case of the prosecution since PW.15 who accompanied Investigating Officer and accused No.1 along with PWs. 20 and 21 has consistently deposed in his evidence regarding the seizure of M.Os.6 and 7. As already pointed out, nothing is elicited from P.W15 to disbelieve his evidence and the same is consistent. The prosecution did not examine the other witness Ningaraju who accompanied them. The evidence of P.W.15 is consistent as he categorically denied the suggestion that he signed the document Exs.P.17 and 18 at Belur Police Station and the same was denied. This Court can rely upon the evidence of PW.15 and also the evidence of PWs.20 and 21 who are the official witness and their evidence cannot be disbelieved only on the ground that they are police witnesses. The accused Nos.2 and 3 in their 313 statement have not given any explanation. The incriminating evidence is put to them and the same is only general denial hence the prosecution proved the case that the robbed car and R.C. book of the car seized at the instance of accused Nos. 2 and 3.
50. Regarding accused No.4 is concerned it is the case of the prosecution that the mobile of the deceased was seized at the instance of accused No.4 by drawing mahazar Ex.P.19. The witness who has been examined as PW.16 in his evidence did not support the case of the prosecution. He states that there were four accused persons in the Police Station. Three or four mobiles are seized and the same was attested by himself and the other witness Ramesh. He cannot tell which mobile was seized, who has produced those mobiles. He claims that Investigating Officer told that all of them were involved in murder case and Circle Inspector showed the mobiles and seized the same. In the cross examination by learned State Public Prosecutor, he made a specific suggestion that MO.8 mobile was seized at the instance of accused No.4 which was removed from his pocket and produced the same, the witness did not support the case of the prosecution. In order to convict accused No.4, the only witness who has spoken is PW.16 who is an independent witness and the other witness is PW.20 Investigating Officer who seized the mobile. When PW.16 did not support the case of the prosecution, in order to prove the recovery at the instance of accused No.4 that too when the mobile belongs to the deceased, there is no corroborating evidence before the Court. It is the case of the prosecution that mobile was seized in the Police Station and accused No.4 himself gave the mobile removing the same from his pocket. The theory of the prosecution cannot be believed since the Court cannot expect an accused appearing before the Police Station along with the mobile and produced the same before the Investigating Officer, which is not the natural conduct of the accused.
51. Having considered the evidence of the prosecution witnesses, we do not find any cogent evidence in order to convict accused No.4 that he was having the mobile of the deceased. The evidence of PWs.15, 20 and 21 is clear that accused Nos.2 and 3 were having the possession of the car and R.C. book of the car that after committing the murder robbed the car for wrongful gain and the murder is for wrongful gain only.
52. The other material relied on by the prosecution is the call details marked as Ex.P27. The same cannot be considered by this Court since nodal officer has not been examined and no certificate under Section 65B of the Evidence Act is produced to prove the same.
Having considered the oral and documentary evidence, particularly evidence of P.W.15, 20 and 21 and so also the document at Ex.P.24, mahazar Exhibit P.17 and 18 and so also the Exhibits P-28, Court below has committed an error in not appreciating the evidence of PWs.15, 20 and 21 with regard to recovery of the car which was seized at the instance of accused Nos.2 and 3. The car was also parked outside the house of accused No.3. After seizure of the car, it was brought to Mudigere. The accused No.1 only led the team to the house of accused No.3 and both accused Nos.2 and 3 were together. Both of them were having the R.C. Book and the material discloses that accused Nos.2 and 3 after committing the murder took the robbed car to Tamilnadu. The Court below has ignored all these materials. The finding of the trial Court is nothing but miscarriage of justice in not considering both oral and documentary evidence. Hence, this Court has to reverse the findings of trial Court with regard to accused Nos.2 and 3. Hence, we pass the following order.
ORDER i) The appeal is partly allowed.
ii) The judgment of acquittal passed by the trial Court dated 27.04.2013 is set aside insofar as accused Nos.2 and 3 are concerned. Accused Nos.2 and 3 are convicted for the offence punishable under Section 302 of Indian Penal Code. Accused Nos.2 and 3 shall undergo simple imprisonment for life and to pay fine of Rs.5,000/- each. In default to undergo simple imprisonment for 3 months.
iii) The judgment of acquittal passed by the Trial Court as against Accused No.4 is confirmed.
Sd/- Sd/-
JUDGE JUDGE Bkp/st/akc