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: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH ON THE 16TH DAY OF DECEMBER, 2016 BEFORE THE HON’BLE MR.JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL APPEAL NO.1126 OF 2006 CONNECTED WITH CRIMINAL APPEAL NO.1167 OF 2006 IN CRIMINAL APPEAL NO.1126 OF 2006: BETWEEN 1. PRAVEEN MURTHY, S/O. SHUBHA MURTHY, AGED 35 YEARS, CHRISTIAN, PATANJAK NURSING HOME, WORKING AS LAB TECHNICIAN, R/O. VENKATARAMANA BADAVANE, CHITRADURGA. 2. PANKAJA @ PINKI, W/O. PRAVEEN MURTHY, AGED 39 YEARS, WORKING AS RECEPTIONIST, IN NAVEEN RIGENCY HOTEL, R/AT VENKATARAMANA BADAVANE, CHITRADURGA. ... APPELLANTS (BY SRI. M. J. PEERJADE, ADV.) AND THE STATE OF KARNATAKA
: 2 : BY P S I TOWN POLICE, HOSPET. ... RESPONDENT (BY SRI. V.M.BANAKAR, ADDITIONAL STATE PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE BY THE ADVOCATE FOR THE APPELLANTS AGAINST THE JUDGEMENT DATED 21.04.2006 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT NO.III, HOSPET IN SESSIONS CASE NO.84 OF 2005, CONVICTING THE APPELLANTS-ACCUSED NOS.1 AND 3 FOR THE OFFENCE PUNISHABLE UNDER SECTION 392 READ WITH SECTION 34 OF INDIAN PENAL CODE AND SECTION 457 OF INDIAN PENAL CODE AND SENTENCING APPELLANT/ACCUSED NO.1 TO SUFFER RIGOROUS IMPRISONMENT FOR 10 YEARS AND TO PAY FINE OF RS.5,000/- AND IN DEFAULT, TO SUFFER 1 YEAR FURTHER RIGOROUS IMPRISONMENT FOR OFFENCE PUNISHABLE UNDER SECTION 392 OF INDIAN PENAL CODE READ WITH SECTION 34 OF INDIAN PENAL CODE. FURTHER SENTENCING HIM TO SUFFER 2 YEARS RIGOROUS IMPRISONMENT AND TO PAY FINE OF RS.1,000/-, IN DEFAULT TO SUFFER 10 MONTHS FURTHER RIGOROUS IMPRISONMENT FOR OFFENCE PUNISHABLE UNDER SECTION 457 OF INDIAN PENAL CODE READ WITH SECTION 34 OF INDIAN PENAL CODE. FURTHER SENTENCING APPELLANT/ACCUSED NO.3 TO SUFFER RIGOROUS IMPRISONMENT FOR 8 YEARS AND TO PAY FINE OF RS.5,000/- IN DEFAULT TO SUFFER 1 YEAR FURTHER RIGOROUS IMPRISONMENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 392 OF INDIAN PENAL CODE READ WITH SECTION 34 OF INDIAN PENAL CODE. FURTHER SENTENCING HER TO SUFFER 2 YEARS RIGOROUS IMPRISONMENT AND TO PAY FINE OF RS.1,000/- IN DEFAULT TO SUFFER 10 MONTHS FURTHER RIGOROUS IMPRISONMENT FOR OFFENCE PUNISHABLE UNDER SECTION 457 OF INDIAN PENAL CODE READ WITH SECTION 34 OF INDIAN PENAL CODE. IN CRIMINAL APPEAL NO.1167 OF 2006: BETWEEN PRADEEP PATIL S/O. HANUMANTHA GOWDA PATIL, AGED 25 YEARS, KOPIKARA ROAD, WORKING IN LIVINGSCINE CLOTH SHOP, R/O. KUNDAGOLA TALUK CHIKAVARTHI VILLAGE,
: 3 : NOW AT P.S.PATIL, HOUSE NO.214127, NEARS RI GANESHA TEMPLE GOKUL RAOD, HUBLI (J.C.). ... APPELLANT (BY SRI. K.L.PATIL, ADV.) AND THE STATE OF KARNATAKA BY HOSPET POLICE, BELLARY DISTRICT, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE 560001. ... RESPONDENT (BY SRI. V.M.BANAKAR, ADDITIONAL STATE PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE BY THE ADVOCATE FOR THE APPELLANT AGAINST THE JUDGMENT DATED 21.04.2006 PASSED BY THE DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT NO.III, HOSPET, IN SESSIONS CASE NO.84 OF 2005 – CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 390, 392 READ WITH SECTION 34 OF INDIAN PENAL CODE AND SECTION 457 OF INDIAN PENAL CODE READ WITH SECTION 34 OF INDIAN PENAL CODE, AND UNDER SECTION 302 OF INDIAN PENAL CODE AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR LIFE FOR OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE AND TO PAY FINE OF RS.5000/- IN DEFAULT, TO SUFFER FURTHER RIGOROUS IMPRISONMENT FOR 1 YEAR AND HE IS ALSO SENTENCED TO SUFFER RIGOROUS IMPRISONMENT FOR 10 YEARS AND TO PAY FINE OF RS.5000/- IN DEFAULT TO SUFFER FURTHER 1 YEAR RIGOROUS IMPRISONMENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 392 OF INDIAN PENAL CODE READ WITH SECTION 34 OF INDIAN PENAL CODE. HE IS ALSO SENTENCED TO SUFFER 2 YEARS RIGOROUS IMPRISONMENT AND TO PAY FINE OF RS.1000/- IN DEFAULT TO SUFFER 10 MONTHS FURTHER RIGOROUS IMPRISONMENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 457 OF INDIAN PENAL CODE READ WITH SECTION 34 OF INDIAN PENAL CODE. ALL THE SENTENCES OF IMPRISONMENT IMPOSED SHALL RUN CONCURRENTLY, EXCEPT DEFAULT SENTENCE.
: 4 : THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.11.2016 COMING ON THIS DAY, K. SOMASHEKAR J., PRONOUNCED THE FOLLOWING: JUDGMENT
Both these appeals arise out of the judgment of conviction and sentence recorded by the Fast Track Court III, Hospet in S.C. No.84 of 2005 dated 21.04.2006. 2. Criminal Appeal No.1126 of 2016 is filed by accused Nos.1 and 3, Criminal Appeal No.1167 of 2006 is filed by accused No.2. Accused No.1 is the husband of accused No.3. Accused No.2 is the friend of accused No.1. 3. The prosecution case is that the deceased Nameraj Gogi is the brother of the complainant (P.W.1). He has been residing in J.P.Nagar. The deceased used to secure woman in the absence of his wife, as a debaucherous person. On 19.04.2005 at about 07:00 a.m., the complainant who received the information from the maid servant, that his brother deceased Nameraj Gogi was murdered and the dead body was lying. It is noticed that he suffered injuries on his face and other parts of the body. After confirming that he has foisted, a complaint was lodged against
: 5 : unknown persons for the offences punishable under Sections 302 and 380 of IPC in Crime No.89 of 2005. 4. The Police came and visited the scene of crime and conducted mahazar on the dead body at Ex.P-2. The I.O. summoned the dog squad and finger print experts to the scene of occurrence and made investigation. As the finger print experts had collected chance fingerprints available on the articles of the house, as where the dead body of the deceased was lying. The I.O. conducted the inquest panchanama over the dead body of the deceased as per Ex.P-3. The dead body was subjected to postmortem examination, as it was evidenced stab injuries. The I.O. seized the clothes belonging to the deceased under mahazar at Ex.P-4. He collected information from C.W.2, the wife of the deceased about stolen properties which were to be in the house of the deceased. The I.O. who received information that the deceased was a debaucherous person, he used to secure the ladies to his house during the absence of his wife. As in the meanwhile, the complainant also gave a wrist watch and shirt button which was found at the scene of offence. They were also seized by the
: 6 : I.O. during the course of investigation. Subsequently, the I.O. laid the charge sheet against the accused Nos.1 to 3 alleging for the offences punishable under Sections 120B, 302, 390, 392 read with 120B of IPC. 5. The accused were denied the charges and claims to be tried for the alleged offences. In order to prove the guilt against the accused, the prosecution in all examined P.Ws.1 to 20, got marked Exs.P-1 to P-29(a) to (d) along with M.Os.1 to 66. The complaint is lodged by P.W.1 on 19.04.2005 at about 08:00 a.m. to the effect that unknown persons who have caused the murder of the deceased. That the furniture and other articles in the house of the deceased are missing. The Police registered the case against the accused for the offences punishable under Sections 302 and 380 of IPC. P.W.2 who informs the Police that valuable gold and silver articles are missing from the house of the deceased. On enquiry with the public calling booth of Kaveri P.W.7, it revealed that a telephone call is made to the residency of the deceased around 10:30 p.m. in the night on the date of the incident. The I.O. who gets the clue of accused No.3 and through
: 7 : her, came to know about the involvement of accused Nos.1 and 2, as they were also involved in this crime for committing the murder of the deceased. As accused Nos.1 and 3 after their arrest lead the I.O. and panchas to their residence in Chitradurga. That M.O.6 – gold chain, M.O.7 – silver plated jewel box, M.O.8 – konica camera and silver stool – M.O.9, statues of Parshwanath and Padmavathi and M.O.11 are recovered at the voluntary instance of Accused No.3. Accused No.3 was wearing M.O.6, M.Os.7 to 11 are recovered from the well on the outskirts of Chitradurga near burial ground. As the above articles were tied in a cloth and concealed by drowning it in water. As the voluntary statements of accused No.1, gold eardrops – M.O.12, gold ring – M.O.13, suitcase – M.O.14, gold chain – M.O.15, gold mangalasutra – M.O.16, gold necklace – M.O.17, a pair of gold anklets – M.O.18, a pair of gold bangles – M.O.19, one Nagaramudi (ornament worn on the head above plaited hair) – M.O.20, two silver vessels – M.O.21, 6 silver glasses – M.O.22, 9 silver cups – M.O.23, silver plates – M.O.24 to 26, flower vase – M.O.27, silver stool with silver umbrella – M.O.28, small stool –
: 8 : M.O.29, 6 small plates – M.O.30, statue of Ganesh – M.O.31, statue of Lakshmi – M.O.32, four cups for keeping vermilion, sandal etc. – M.Os.33 to 35, two lamps – M.O.31 and one Yamaha motorcycle – M.O.63 are recovered from the house of accused No.1, as per the voluntary statement of that accused. 6. As at the voluntary instance of accused No.2 gold bracelet – M.O.37, gold anklets – M.Os.38 and 39, gold chain – M.O.40, gold pendant – M.O.41, a pair of gold bangles – M.O.42, 4 gold bangles M.O.43, gold pearl earrings – M.O.44, earrings with drops – M.O.45, silver lamps – M.O.46, 2 silver umbrellas – M.O.47, big silver lamp – M.O.48, silver lamp – M.O.49, silver spoon – M.O.50, one silver sprinkler M.O.51, silver glasses – M.O.52, vermilion cup – M.O.53, vermilion cup with lid M.O.54, silver umbrella M.O.55, silver coated stool – M.O.56, silver crown M.O.57, a suitcase – M.O.58. As the above articles except gold bracelet worn by accused were kept in the suitcase M.O.58. The above articles which were seized from the cloakroom of KSRTC bus stand at Hubli. As at the voluntary statement of the accused Nos.1 and 3, led the Police and panchas to a place near National
: 9 : High School on the highway. As at the instance of accused No.2, knife M.O.61 was recovered. As at the instance of accused No.1, a sim card M.O.65 and broken mobile set – M.O.66 was recovered. All the three articles were scattered at the place where M.O.61 was buried. 7. In this case, P.W.2 who has identified the above articles seized at the instance of accused Nos.1 and 3, as belonging to them. As the I.O. after registering the case, had proceeded to the scene of crime, as where the dead body was lying. As according to the prosecution theory, in the house of the deceased, the fingerprint expert P.W.19 was summoned to the scene of crime, during the course of investigation. Several photographs were taken on the objects found in the house. The landline telephone set and on one a plastic box the fingerprints were found at the scene of crime. The fingerprints of accused Nos.1 to 3 were later on taken by the I.O. during the course of investigation, after their arrest, they were sent for examination for comparison with the fingerprints found at the scene of crime on the objects. The fingerprint report discloses that the fingerprints
: 10 : found on the telephone would tally with the fingerprint of accused No.1 and the fingerprints on plastic box was found to tally with the fingerprints of accused Nos.2 and 3. 8. P.W.2 is the wife of the deceased. She came to the town after receiving information as she had come to her sister’s house. She had also seen the dead body and also the injuries on the dead body. Then she found that gold and silver articles were stolen. She had given information to the Police in detail about the lost articles in the scene of crime, as where the dead body was lying. In the subsequent examination, she identified the gold and silver articles that were stolen from her house and also the suitcase in which articles were transported. P.W.2 further submitted that her husband was running medical shop. He was keeping the accounts and he was filing the income tax and sale tax returns. He was also keeping the documents regarding the articles purchased. The auditor is having the records which were to be maintained by him. 9. In fact, some of the articles bear the name of son of P.W.2 and the deceased. So far as theft is concerned, it is enough
: 11 : if it is proved that immovable property was movable from the possession of a person without his concern. Admittedly, in this case, the accused has not claimed that any property belong to them. 10. As from the evidence of P.W.2, it is clear that articles were stolen from the house of the deceased. P.W.3 the maid servant who had first seen the dead body lying in the house in the morning of 19.04.2005. She had also identified the articles that were found in the house i.e., two pieces of scissors and flowerpots. In the cross-examination, nothing has been elicited by the defence counsel. 11. P.W.4 being the panch witness in the inquest panchanama which conducted by the I.O. during the course of investigation over the dead body of the deceased as per Ex.P-3. P.W.8 is the panch witness to mahazar at Ex.P-5 under which M.Os.4 and 5 the watch and shirt button were seized by the Police. They were said to have been found in the house of the deceased. The button was lying on the carpet and watch was below the air cooler. But he did not know that the person who
: 12 : had produced those articles. As this evidence also found place in the record of the prosecution. But he has specifically stated in the evidence that accused No.1 was working in a laboratory of a Hospital at Chitradurga. He has also introduced accused No.3 to him. He has also identified the electronic wrist watch used to be worn by the accused No.1. It is identified and marked as M.O.4. 12. P.W.7 who being the owner of the public call booth testifies to the effect that on the date of the incident at 10.30 p.m., accused No.3 who came and made a call from her telephone booth which is later on found to be the residence of the deceased. There were bloodstains on knife – M.O.61 and T-shirt of accused No.1. It was sent to the FSL along with the bloodstained clothing of the deceased. The FSL report discloses that the bloodstains on the T-shirt recovered from accused No.1, the bloodstains on the knife – M.O.61 are of ‘O’ group blood. The bloodstains on the broken ceramic flowerpot pieces which are recovered from the house of the deceased are found to be of ‘O’ group blood. The I.O. after completion of investigation, laid the charge-sheet
: 13 : against the accused for committing offences under Sections 120B, 302, 380, 394 and 397 read with Section 34 of IPC. 13. As already been stated that the prosecution in order to prove the guilt of accused Nos.1 to 3 strongly relied upon the circumstances of the fingerprints of accused Nos.1 to 3 which were found on the articles in the house of the deceased as where the dead body of the deceased was lying. The robbed articles viz., gold and silver ornaments were discovered as at the voluntary statement of the accused Nos.1 and 3. The P.W.2 who has identified the said articles and that they were found missing from their house and that the said articles belong to them. Whereas in the case of the prosecution, the panch witness to the recovery, as P.W.15 has supported the case of the prosecution regarding the discovery of the above articles which were got marked for the prosecution to prove the guilt against the accused and that they have been discovered and seized at the voluntary instance of accused Nos.1 and 3 in the case of the prosecution. Whereas in the case of the prosecution, the postmortem report discloses that the death is homicidal death. As the Trial Court framed the charge
: 14 : against the accused for committing offences punishable under Sections 120B, 302, 390, 392, 457 read with Section 34 of IPC. As the Trial Court on the basis of the evidence convicted, accused Nos.1 to 3 under Sections 390 and 392 read with Section 34 of IPC and also convicted the accused for an offence punishable under Section 457 of IPC without a charge. However, accused Nos.1 and 3 are acquitted for the charge under Section 302 of IPC, but convicted the accused No.2 for the offence punishable under Section 302 of IPC. That accused No.2 is sentenced to imprisonment for life for conviction under Section 302 of IPC. Accused No.1 is sentenced under Sections 390 and 392 of IPC for rigorous imprisonment for a period of ten years and accused No.3 is sentenced for rigorous imprisonment for a period of eight years with fine. The accused are in custody since the date of arrest. The accused Nos.1 and 3 aggrieved by the judgment of conviction have filed Criminal Appeal No.2216 of 2010 and accused No.2 has filed Criminal Appeal No.2217 of 2010. As the State has not filed any appeal for acquittal of accused Nos.1 and 3 for the offence punishable under Section 302 of IPC.
: 15 : 14. The legal circumstances which makes that accused Nos.1 to 3 guilty of offence punishable under Section 392 of IPC would necessarily become valid for consideration of the case for an offence punishable under Section 302 of IPC. The discrimination in convicting accused No.2 for an offence punishable under Section 302 of IPC and acquitting accused Nos.1 and 3 does not appear to be based on proper analysis and correct logic, so also for acquitting accused Nos.1 to 3 for a charge under Section 120B of IPC. 15. Learned counsel for the appellants in these appeals contended that all the stolen properties were recovered from the possession of the accused at their instances. Hence, it does not have any substances for the prosecution to prove the guilt against the accused. The I.O. in this case has not followed the procedure as prescribed under Sections 53 and 54 of the Cr.P.C. The procedure to be followed immediately after arrest of that accused was not followed. The station diary has not been produced. The local witnesses were not taken during the course of the investigation. The search and seizure of the accused No.3 at
: 16 : telephone booth is not proved by the prosecution, by putforth the cogent evidence itself reveals as it is created for the purpose of evidence of the prosecution. The voluntary statement of the accused incorporated in the seizure mahazar, before search or arresting of any person, the jurisdiction of the Court and the I.O. should have been informed the concerned Magistrate. The local witnesses were not taken, as the witnesses were taken from Hospete and not from Chitradurga and Hubli. The seizure and inquest mahazar which were to be conducted by the I.O. during the course of investigation for the alleged offences against the accused are all created at Hospete only. 16. It is further contended that there is no evidence to show that the knife which produced before the Court was used for the commission of an offence. The measurement of the wounds does not tally with the measurement of the weapons which were to be seized during the course of investigation by I.O. The evidence of finger print expert is not believable. It is all concocted. Why they could not trace the wristwatch of the accused No.1 at the first instance is not explained. In order to
: 17 : involve the accused, the finding of the wrist watch theory is projected. The attendance registers seized at Chitradurga are all concocted. They are tampered to create the evidence. Why the independent witnesses were not taken though they were available at the place of seizure and search is not explained by the prosecution to prove the guilt against the accused. 17. P.W.9 who has stated in his evidence that one Veena had called the deceased over his telephone. The I.O. who has not tried to search and detect as to who is that lady. It is alleged that the lady with a girl child used to come and stay with the deceased. Therefore, the counsel for the appellants submitted that the accused have not committed any offence, even if any offence is said to have been committed, at the most it amounts to possession of stolen property. Therefore, taking into consideration, the detention period spent by the accused and can be acquitted on that ground alone for the offences charged against them. 18. On controvert to the arguments advanced by the learned counsel for the appellants in these appeals that the learned
: 18 : Additional Public Prosecutor submitted that that there is an evidence to show that the finger print of all the accused were traced during the course of investigation by the I.O., by securing the finger print experts. It shows that accused were present at the scene of offence, as the offences which were to be committed and also committing the murder of the deceased. There is no direct evidence about the conspiracy for committing murder, but accused No.3 was arrested at the telephone booth. There is some mistake with regard to the mentioning of the date, it is the 3rd accused who had called the deceased in the name of said Veena. The Doctor has given an opinion that the knife (M.O.61) produced, it caused injuries which were to be inflicted over the person of the deceased. The telephone booth owner had identified the accused, who had called the deceased on the date of the incident at night. No reasons which were to be putforth by the prosecution to prove the guilt of the accused in the cross- examination of the prosecution witnesses as to why they should falsely implicate the accused persons. But they did not elicit any trustworthy evidence for the prosecution to disbelieve that why
: 19 : they should falsely implicate the accused persons. Alternatively, the learned State Public Prosecutor submitted that even if Section 120B of IPC is not proved, the accused has to be convicted, as they had common intention to commit the murder and rob the gold and silver items from the house of the deceased. Therefore, the conviction held against the accused be maintained and defend the same. 19. In these cases, the only evidence that is available on record to prove the guilt against the accused with reference to the alleged criminal conspiracy among the accused is concerned is that of P.W.7. She has stated in her evidence that on 18.04.2005 that accused No.3 came to her STD booth to make telephone call in between 09:30 to 10:30 p.m. she had come and made two calls from the telephone booth. One week thereafter, the Police came and had collected the call records from her STD booth. Then 15 days thereafter, she said to have been brought to STD booth by the Police as she came to make telephone calls. She identified Ex.P-6 the printed receipts issued by the STD booth telephone machine. She denied that she had stated before the Police that on
: 20 : 18.05.2005 when the accused came to her booth for making telephone calls for second time, she had informed the Police and the Police had arrested and seized the golden avalakki chain in her presence and other panchas, as where they were secured during the course of investigation. As this P.W.7 who denied that on 08.05.2005 was standing in front of her STD booth after making 4 calls to Chitradurga and on that time, she had informed the Police and Police came and arrested her. The denied statement is at Exs.P-7, P-7a and P-7b. As this denial of statement does not hold any bearings for this evidence which has to be elicited in these witnesses by the defence counsel, as where the prosecution has been examined P.W.7 to prove the guilt against the accused. 20. P.W.17 who being the I.O. in this case arrested the accused persons and had recovered material objects. According to him, on 08.05.2005 he received a telephone call from C.W.13 that the lady for whom they are looking for has come to make telephone call. That evidence is not corroborated by the evidence of P.W.7. His evidence only shows that he has recovered the 4 rows golden chain at M.O.6 under mahazar at Ex.P-13 which has
: 21 : to be drawn by him in the presence of the panch witnesses. P.W.7 who had seized the telephone receipts under mahazar at Ex.P-21 on that day while arresting the accused. Under Ex.P-21, P.W.7 is said to have made call to P.W.17’s mobile telephone number and also to another I.O. But P.W.7 the independent witness has not corroborated the evidence of this I.O., as this contention which has been taken by the counsel for the appellant in these appeals during the course of his arguments. 21. The I.O. who had obtained telephone call list from P.W.20 where they were traced that on the date of incident in between 09:30 to 09:40 p.m. two calls had come to the mobile telephone of the deceased from this STD booth. It is on that ground the I.O. had made investigation. On the contrary, P.W.7 has contradicted the case of the prosecution by saying that accused was brought of her STD booth, 10 or 15 days after they had collected the telephone calls list from her STD booth. Therefore, the circumstantial link is detached by this evidence. 22. P.Ws.14 and 15 are the panch witnesses for the recovery of material objects at the instance of the accused. P.W.17
: 22 : being an I.O. who conducted major investigation, who spoken about the recovery of material objects. That major portion of the case of prosecution is corroborated by this witness. According to him, the Police had told him that they have arrested accused No.3 at Nirmala Bakery and they have seized four rows gold chain and he has signed the mahazar at Ex.P-13. 23. P.W.14 is the employee in the cloakroom of the KSRTC bus stand at Hubli. According to him, signature in the receipt was signed by one Mehaboob, who was working with them. Now he is not working. Now he is also working at Dharamasthala. He had categorically stated that he had seen the writing of the receipt and keeping of the box by the accused No.2. The box is identified as M.O.58. 24. On perusal of the evidence of P.Ws.14 and 15, it reveals that the stolen properties which were recovered by the I.O. during the course of investigation by the accused persons. It is also proved that material objects like knife, blood stained cloth, mobile pieces, sim card etc., were also recovered by the I.O. during the course of the investigation. It is at the voluntary
: 23 : statements made by the accused which were given by the accused which is got it marked as Ex.P-22. That relevant portion is marked as Ex.P-22. As this P.W.14 who speaks about the discovery at the instance of accused No.3 and arrest of accused No.1 at her instance. The recovery of the gold articles from the possession of accused No.3 at Chitradurga were also recovered during the course of investigation by the I.O. As he speaks about the voluntary statement at Ex.P-23 had given by the accused No.1 under which the discovery of accused No.2 and other materials which were to be traced by the I.O. during the course of investigation. 25. The learned Trial Judge on perusal of the allegations made in the records and also an evidence given by the prosecution has he found that the prosecution has proved the guilt against the accused relating to the criminal trespass though the accused No.3 entered the house with the consent of the deceased. But her intimacy was to commit the offence along with accused Nos.1 and 2. The accused Nos.1 and 2 are concerned, they are trespassers into the scene of crime. Further, the place of the incident is a
: 24 : house where the deceased was residing. The accused Nos.1 and 2 clandestinely entered in the house of the deceased. By concealing their entry, they entered the house of the deceased after sunset. The accused had a common intention to commit robbery from the house of the deceased. Therefore, the trial Judge who find that ingredients under Sections 441, 443 and 444 of IPC are clearly proved, as this found in the impugned judgment which were to be questioned by this appeal which has preferred by the appellants accused in these two appeals. 26. Having gone through the evidence putforth by the prosecution, it reveals as that the intention of the accused was to commit robbery in regarding the properties which were to be found in the house of the accused involved in this case. In this case, the huge property which was recovered from the possession of the accused, as at the voluntary statement given by the accused during the course of investigation. It reveals that it was robbed from the house of the deceased. P.W.1 is the brother of the deceased and also being the author of the complaint. P.W.2 is the wife of the deceased. P.W.1 has categorically stated that in the
: 25 : case of the prosecution that the said gold articles including the suitcase etc., belongs to the deceased. He has also admitted in the evidence that the properties belong to his brother. 27. As already been stated that P.W.2 is the wife of the deceased, it is she who gave detailed list of silver and gold articles which were to be found in the house of the deceased and also the suitcase, camera, idols, gold, silver and other ornaments were stolen and she had given information to the I.O. during the course of investigation. As subsequently, she had identified before the Police and also during the course of investigation, as they were to be got it marked as M.Os.6 to 58, the suitcase is at M.O.58 and camera is at M.O.8. 28. However, having gone through the evidence of the prosecution, as wherein the trial Judge has held conviction against the accused No.2 for the offence under Section 302 of IPC by accepting the evidence. Whereas, accused Nos.1 and 3 are concerned, the trial Judge has rightly held acquittal for the offence under Section 302 of IPC. As this contention which is taken by the learned counsel for the appellants during the course of the
: 26 : arguments in these appeals where the evidence putforth by the prosecution to prove the guilt against the accused. However, there is evidence found for the prosecution which has to be proved against the accused as they were committing robbery of the silver and gold articles from the possession of the deceased, as they were found in the house of the deceased, which is marked as M.Os.6 to 58, the suit case at M.O.58 and camera at M.O.8 which were to be got marked for the prosecution. 29. The entire case of the prosecution which has relied upon the circumstantial evidence was whether the accused were held conspiracy among to each other and entered into the house of the deceased, as at the instance of the accused No.3 who telephonically called the deceased and thereafter accused Nos.1 and 2 have been entering into the house of the deceased and committing murder, as there was scuffle took between the deceased and accused No.2 and also been made to assault from the flower plot and thereafter accused No.2 who had brought the kitchen knife in the scene of crime itself and also stabbed over the person of the deceased and inflicted injuries which were to be
: 27 : revealed in the postmortem report which conducted by the Doctor who held autopsy over the dead body. However, there are no eyewitnesses by the prosecution to prove the guilt against the accused for the offence punishable under Section 302 of the IPC. That the entire case against the prosecution which has relied upon the circumstantial evidence. Each link of the circumstances which should be established without rising any doubts for the alleged offences against the accused that the accused have committed the murder of the deceased by inflicting injuries as indicates in the postmortem report at Ex.P-10 by using the kitchen knife which is marked as M.O.61 by the accused No.2 at the time of committing the murder of the deceased. But the prosecution has to prove the guilt against the accused for having robbed the gold and silver articles from the possession of the deceased, as where the dead body was lying and also at the instance of accused, the I.O. during the course of investigation have been seized under mahazar. 30. We are of the opinion that the prosecution has not proved the guilt of the accused as under Section 302 of IPC against the accused No.2. The learned Sessions Judge has
: 28 : absolutely perverted to held that the prosecution has proved the guilt against the accused No.2 for committing offence under Section 302 of IPC by misreading the evidence. Though there are no eyewitnesses for the prosecution of the alleged offences for committing the murder of the deceased with means of kitchen knife by accused No.2 and inflicting injuries. But there is an evidence putforth by the prosecution to prove the guilt against the accused, as they were robbed the gold and silver articles from the possession of the deceased. As to this extent, we are of the opinion that the prosecution has proved the guilt against the accused with beyond all reasonable doubt. 31. In Criminal Appeal No.2216 of 2010, the accused were convicted for the offences punishable under Section 390, 392 457 read with Section 34 of IPC, as they were acquitted of the charges under Section 302 of IPC. Whereas the accused in Criminal Appeal No.2217 of 2010, however had been additionally convicted under Section 302 of IPC. All the three accused were sentenced accordingly held by the learned Sessions Judge. Though the accused preferred an appeal against their conviction held by
: 29 : the learned Sessions Judge as above, the State refrained from doing so, more particularly against the acquittal of the accused Nos.1 and 3 of the charges under Section 302 of IPC. The Trial Court framed the charge against the accused as under Sections 120B, 302, 390, 392, 457 read with Section 34 of IPC. On the basis of the evidence adduced by the prosecution by examining P.Ws.1 to 20, got marked Exs.P-1 to P-29(a) toP-29(d) and also got marked M.Os.1 to 66. On consideration of the evidence as putforth by the prosecution which were available on record convicted and sentenced the accused as above. As already been stated that the Trial Court has framed the charge against the accused in these appeals as under Sections 120B, 302, 390, 392, 457 read with Section 34 of IPC. It is relevant to state the tests of the legal provisions as set out hereunder: “120B. Punishment of criminal conspiracy.— (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy,
: 30 : be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] 302. Punishment for murder.— Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine. 390. Robbery.— In all robbery there is either theft or extortion. 392. Punishment for robbery.— Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
: 31 : 457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.— Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years. 34. Acts done by several persons in furtherance of common intention.— When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 32. Having gone through the evidence putforth by the prosecution, it is relevant to state the evidence of P.W.7 which has already been discussed. Her evidence clearly establishes that
: 32 : accused No.3 had some sort of common intention for commission of offence. It is at her instance that accused Nos.1 and 2 were entering into the scene of crime. The fact that she had called the deceased on the date of the incident in between 09:30 to 10:00 p.m. It has proved by the I.O. P.W.17 and corroborated the evidence of P.W.20 – the Airtel Officer, as the call detail is produced at Ex.P-9, containing four pages. The evidence stated by these witnesses, it clearly proves that from the STD booth calls, just before the incident is proved to have gone to the mobile of the deceased. 33. P.W.8 is the panch witnesses to mahazar at Ex.P-5 under which M.Os.4 and 5 the watch and shirt button which were to be seized by the I.O. during the course of investigation. They were said to have been found in the house of the deceased. The button was lying on the carpet and watch was below the air cooler. As this evidence is placed on record and analyzed by the learned Trial Judge who had come to the conclusion that the prosecution has proved the guilt against the accused.
: 33 : 34. P.W.13 being a Doctor who held autopsy over the dead body of the deceased and issued postmortem report, as per Ex.P-10, it reveals that in all 18 injuries, which were to be inflicted over the person of the deceased. The injuries which were present over the cheek and abdomen are slit like with both angle and narrow, all the injuries 1 to 18 are antemortem in nature. He has categorically opined about the nature of injuries. He has also opined that the death of the deceased was on account of the injuries inflicted over his person. The time of death is 12:00 to 15:00 hours prior to conduct the autopsy over the dead body of the deceased. He had also examined the flower pot pieces, knife which were sent to him by the I.O. He has stated that the injuries which were to be inflicted over the person of the deceased, corresponding to the weapons, as regards he had issued a report at Ex.P-11. P.W.13 has further stated in his evidence that he admitted that the knife and some of the injuries which were to be noticed by him during the autopsy held over the dead body on the person of the deceased which were to be inflicted much more width, as that the knife, as it is two meter thickness, 3/4th length
: 34 : and 1.5 cms. width. But the injuries which were to be inflicted over the person of the deceased, it does not depend on the thickness of the weapon i.e., the knife which alleged to be used by the accused at the time of committing the alleged offence. 35. Moreover, the recovery of the stolen properties such as gold items and silver articles which clearly proves the involvement of the accused in this case. Therefore, the circumstances clearly establishes the prosecution that the involvement of the accused No.1 with accused No.3, as where their presence was also found at the scene of crime. The Trial Judge on evaluating the entire evidence which was placed by the prosecution and also which is available on record, he finds that accused Nos.1 to 3 have committed the robbery in the house of the deceased Nameraj Gogi and also that they had voluntarily caused hurt and death of the deceased. So far as infliction of injuries over the person of the deceased with the knife alleged to be used by the accused at the time of committing the alleged offences, but the prosecution did not place the evidence by eyewitnesses to prove the guilt against the accused to commit the
: 35 : murder of the deceased by infliction of injuries over the person of the deceased as indicates at Ex.P-10 the postmortem report. 36. However, accused Nos.1 to 3 have been involved in the case for robbery in the house of the deceased, insofar as the gold items and silver articles which were to be found in the house of the deceased also from the person of the accused. The seizure of the material objects of gold and silver articles, it is at the instance of accused No.3. The findings of the material objects in possession of the accused, it clearly proves that they intended to rob the gold items and silver articles from the possession of the deceased by causing hurt to him. Whereas, in murder of the deceased are concerned, that the prosecution has not been putforth the cogent, corroborative and acceptable evidence for the offence punishable under Section 302 of IPC. 37. The learned Sessions Judge have already been held acquittal for the offence punishable under Section 302 of IPC insofar as accused Nos.1 and 3, but held conviction for offence under Section 302 of IPC in respect of accused No.2. Though there is no substantial evidence produced by the prosecution to
: 36 : prove the guilt against the said accused with beyond all reasonable doubt, that he committed the murder of the deceased with means of M.O.16 of the knife which alleged to be used by him and also inflicted injuries over the person of the deceased. 38. The learned Sessions Judge held conviction against the accused Nos.1 and 3 for the offences punishable under Sections 390, 392, 457 read with Section 34 of IPC respectively and also the offence under Section 302 of IPC against the accused No.2. 39. The appellants’ counsel in Criminal Appeal No.1126 of 2006 have been taken contention that the appellant accused Nos.1 and 3 in this appeal at the most said to have been stolen properties which falls under Section 411 of IPC, as there is no evidence of commission of robbery or murder as placed by the prosecution to prove the guilt against them with cogent and corroborative evidence. 40. The appellant’s counsel similarly taken a contention that in Criminal Appeal No.1167 of 2006 insofar as accused No.2
: 37 : that the accused at the most said to have been found in the possession of the stolen properties which falls under Section 411 of IPC, as there is no evidence of commission of robbery or murder, as placed by the prosecution to prove the guilt against the accused. The similar contention which has taken by the learned counsel for the appellants during the course of their arguments. 41. On contrary, the learned Additional State Public Prosecutor for the State have been taken contention that the prosecution has proved the guilt against the accused even for the offences punishable under Section 397 of IPC, as where the accused robbed the gold items and silver articles from the possession of the deceased which was seized by the I.O. during the course of investigation, it is at the voluntary statement of the accused Nos.1 to 3 and also conducted seizure mahazar in the presence of panch witnesses, but keeping in view of the evidence of the prosecution, we are of the view that the prosecution did not place the positive and acceptable evidence to prove the guilt. 42. In these cases, the circumstances regarding to recovery of robbed articles such as M.O.12 to M.O.57 of gold
: 38 : items and silver articles of which the prosecution has placed reliance in the recovery of these material objects at the instance of the accused. As these articles which were to be seized by conducting the mahazar by the I.O. The evidence regarding these panchanama which was conducted by I.O. during the course of investigation is free from infirmities. Under such circumstances, it is to be held that the prosecution has proved the recovery of gold items and silver articles from the person of the accused, as at the instance of the accused had given their voluntary statement. As this contention which is taken by the learned State Public Prosecutor for the State. Apart from the other grounds as urged in this appeal, the report of the finger print experts, it is borne out from the evidence on record that immediately the Police came and visited the scene of offence after receipt of an information about the death of the deceased as where the dead body was lying in the scene of crime and conducted the spot panchanama of the dead body. The I.O. who summoned the sniffer dog and finger print experts to the scene of crime and made investigation. The finger print experts have collected the chance fingerprints
: 39 : available on the articles which were to be found in the house of the deceased. The I.O. conducted the inquest panchanama of the dead body as per Ex.P-3. The dead body was subjected to postmortem examination to know the cause of the death, as it was having stab injuries inflicted over the person of the deceased. The I.O. seized the clothes of the deceased under mahazar at Ex.P-4 and also collected the information from C.W.3 the wife of deceased about stolen properties which were missing in the scene of crime. 43. As the finger print report, it is an experts’ evidence. The Court is not bound by the report. The Court may accept or may reject it. Even if it is accepted, that the circumstances alone is not sufficient to complete the chain of circumstances so as to convict the accused for the alleged offences under Sections 302 of IPC. Since the prosecution is required to establish the guilt against the accused with beyond all reasonable doubt for the offence under Section 302 of IPC in respect of accused No.2. The recovery of the gold articles and silver articles also to be established with beyond all reasonable doubt. The learned
: 40 : Sessions Judge without examining the evidence placed on record in its proper perspective has erroneously came to the conclusion that the prosecution has proved the guilt of the accused No.2 for the offence punishable under Section 302 of IPC beyond reasonable doubt and convicted that accused by misreading the evidence. 44. On our re-appreciation of the evidence in these appeals, we are of the considered opinion that the evidence which placed by the prosecution is not sufficient to prove the guilt against the accused No.2 for the offence punishable under Section 302 of IPC. 45. The learned Additional State Public Prosecutor for the respondent/State who produced certain documents for the purpose of perusal. It reveals that as per the order sheet of the Trial Court and as per the report of the Superintendent of Central Jail, Ballari, accused Nos.1 to 3 were in custody. That accused No.1 for a period of 7 years 7 months 2 days, accused No.2 for a period of 8 years 8 days and accused No.3 for a period of 7 years 7 months 3 days, as where these accused have undergone
: 41 : imprisonment during the course of trial and also even after conviction held against them by the learned Sessions Judge by passing the impugned judgment of conviction and sentence in S.C. No.84 of 2005. 46. Having regard to the accused persons allegedly involved in the offences, as disclosed by the prosecution, the crimes committed are of murder in the course of robbery together with lurking house trespass and house breaking by night in order to commit offence with common intention. As in these cases, though Section 397 of IPC deals with robbery or dacoity with attempt to cause death or grievous hurt and prescribes punishment by way of imprisonment of not less than seven years, but the prosecution did not putforth the enough material evidence to prove the guilt against the accused for the offence punishable under Section 397 of IPC. Therefore, the contention which is taken by the learned Additional State Public Prosecutor does not hold any force. Keeping in view of the remaining offence charged against the accused, as there are ample evidence to prove the guilt against the accused, the same has been appreciated by the learned
: 42 : Sessions Judge. Therefore, it does not call for any interference of the impugned judgment of conviction and sentence held against the accused Nos.1 to 3. The prosecution did not place ample evidence insofar as the accused No.2 for the offence punishable under Section 302 of IPC by inflicting injury over the person of the deceased with means of the knife – M.O.61. But the learned Sessions Judge was misdirected and absolute perversity to held the conviction against the accused No.2 under Section 302 of IPC. Therefore, we are of the view that it requires to be interfered in the impugned judgment insofar as accused No.2 is concerned, for the offence punishable under Section 302 of IPC. For the aforesaid reasons, the judgment of the Trial Court convicting the accused Nos.1 and 3 for the offences punishable under Sections 390, 392, 457 read with Section 34 of IPC is affirmed. However, we are of the view that the sentence awarded on these accused is inappropriate. That accused No.1 was sentenced to undergo rigorous imprisonment for a period of ten years and accused No.3 was sentenced to undergo rigorous imprisonment for a period of eight years. That accused No.1 was
: 43 : in custody for a period of 7 years 7 months 2 days and accused No.3 for a period of 7 years 7 months 3 days. We are of the view that based on the facts and circumstances, the sentence imposed is excessive and the sentence awarded on accused Nos.1 and 3 shall be modified to the period of custody already undergone by them. That the conviction of accused No.2 for the offence punishable under Section 302 of IPC being misplaced, the judgment of the Trial Court requires to be reversed. Hence, the judgment of the Trial Court convicting the accused No.2 for the offence punishable under Section 302 of IPC is reversed. The accused No.2 is held not guilty of the offence punishable under Section 302 of IPC. Both the appeals are disposed off accordingly. Sd/- JUDGE Sd/- JUDGE Rsh