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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON’BLE MR. JUSTICE B. VEERAPPA
AND
THE HON’BLE MR. JUSTICE E.S. INDIRESH
CRIMINAL APPEAL NO.270/2015 C/W CRIMINAL APPEAL No.376/2015 C/W CRIMINAL APPEAL No.642/2015
In CRL.A. No.270/2015:
BETWEEN:
1 . ANANDA RAMAPPA MANAVADDAR S/O RAMAPPA
AGED ABOUT 21 YEARS OCCUPATION: WELDING WORK RESIDENT OF MALLIKASABA GUDDADA MELE GOKHAK-591307.
2 . SACHINA SIDDAPPA SHAPETE S/O SIDDAPPA AGED ABOUT 21 YEARS OCCUPATION: WORKING IN RADDISIDDI FACTORY RESIDENT OF BANGARA GALLI GOKHAK-591307.
3 . BHARATHA PARASAPPA HARAGOLI S/O PARASAPPA
2 AGED ABOUT 20 YEARS OCCUPATION: WORKING IN H P GAS RESIDENT OF BANGARA GALLI GOKHAK-591307. (NOW IN JUDICIAL CUSTODY, CENTRAL PRISON, DHARWAD)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR COUNSEL ALONG WITH SRI SANTOSH B., ADVOCATE)
AND:
STATE OF KARNATAKA BY RURAL POLICE, CHIKMAGALURU-577101 (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR)
…RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
**** THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER CONVICTION AND SENTENCE DATED 30.12.2014 PASSED IN SESSIONS CASE No.34/2013 ON THE FILE OF THE II-ADDL. SESSIONS JUDGE, CHIKMAGALUR-CONVICTING THE APPELLANT/ACCUSED No.1,2,5 FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 AND 201 READ WITH 34 OF IPC.
IN CRL.A. No.376/2015:
BETWEEN:
RAJASHEKAR BASAVANTHA PATTHAR, S/O BASANTHA, AGED ABOUT 24 YEARS, GOLDSMITH, R/O RAVIVARAPETE,
3 JAINAGALLI, GOKHAK-583211.
...APPELLANT
(BY SRI GIRISH B. BALADARE, ADVOCATE)
AND:
STATE BY RURAL POLICE, CHIKAMAGALUR, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560001.
…RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP) **** THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 30.12.2014 PASSED BY THE II ADDL. SESSIONS JUDGE, CHIKMAGALUR, IN S.C. No.34/2013 – CONVICTING THE APPELLANT/ACCUSED No.3 FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 AND 201 READ WITH 34 OF IPC.
IN CRL.A. No.642/2015:
BETWEEN:
SURESH HANUMANTHA KAPARATTI, S/O HANUMANTHA, AGED ABOUT 26 YEARS, DRIVER, R/O MANIKAVADI, GOKHAK-583211.
...APPELLANT
(BY SRI GIRISH B. BALADARE, ADVOCATE)
AND:
STATE BY RURAL POLICE, CHIKAMAGALUR,
4 REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560001.
…RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP) **** THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 30.12.2014 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, CHIKMAGALUR, IN S.C. No.34/2013 – CONVICTING THE APPELLANT/ACCUSED No.4 FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 AND 201 READ WITH 34 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT IS COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
J U D G M E N T
Sri Hashmath Pasha, learned senior counsel and Sri Girish B. Baladare, learned counsel for the appellants, have argued the matter through video conference and Sri Vijaya Kumar Majage, learned Addl. SPP argued the matter being present in the open Court.
1(a). Criminal Appeal No.270/2015 is filed by Accused Nos.1,2 and 5; Criminal Appeal No.376/2015 is filed by Accused No.3; and Criminal Appeal No.642/2015 is filed by Accused No.4, against the common Judgment and order of
5 conviction and sentence dated 30.12.2014 made in S.C. No.34/2013 on the file of the II Addl. Sessions Judge, Chikmagaluru convicting the Accused Nos.1 to 5 for the offences punishable under Sections 302, 201 r/w 34 of IPC and sentencing them to undergo imprisonment for life and to pay fine of Rs.15,000/- each and in default of payment of fine to undergo further Simple Imprisonment for a period of one year for the offence punishable under Section 302 r/w 34 of IPC and to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 201 r/w 34 of IPC.
I. FACTS OF THE CASE
It is the case of the prosecution that the deceased Anil Maruthi Kambar, was working in the Jewelry shop of PW.18 (CW.32) – Sri Vijayakumar Bapna. On 26.10.2012, PW.18 had sent the deceased to Chennai to collect gold from the jewelry shop owners at Chennai. Accordingly on 29.10.2012 the deceased collected gold ingots and jewels
6 from the Jewelry shops at Chennai and also had collected cash of Rs.4,18,000/- from one Sri Aseem Mallik at Bangalore and was on his way back to Gokak. But on 30.10.2012 at about 3.30 to 4.00 p.m., the accused persons got in contact with the deceased and took him in a Maruthi car towards Hubli and committed his murder near Rainala village, on Hubli-Dharwad road, and took the gold ingots, jewels and cash form the deceased and dumped his dead body near a bridge at Kanive-Dasarahalli, on Chikmagaluru-Kadur road, Chikmagaluru taluk, to screen the offence. The intention of murder was for gain. After investigation, the jurisdictional Investigating Officer filed the charge sheet against the accused for the offences punishable under Sections 302 and 201 r/w Section-34 of IPC. It is further case of the prosecution that after apprehending Accused Nos.1 to 5 by the concerned Police, the matter was committed to the Prl. Sessions Judge, Chikmagalur.
In order to prove the guilt of the accused, the prosecution examined PWs.1 to 34 and got marked the documents – Ex.P1 to Ex.P52 and MOs.1 to 15.
After completion of evidence on behalf of the prosecution, the statements of the accused were recorded as contemplated under Section 313 of the Code of Criminal Procedure.
The accused persons denied all the incriminating circumstances appearing against them and also the case set up by the prosecution. The accused neither led the defence evidence nor got marked any documents.
On the basis of the oral and documentary evidence on record, the learned Sessions Judge raised three points for consideration and recorded a finding that the prosecution proved that the deceased Anil Maruthi Kambara, aged about 35 years, resident of Gokak, Belagaum district, is dead and his death is a homicidal
8 death. It was further held that the prosecution proved that on 30.10.2012 at about 3.30 to 4.00 p.m. accused Nos.1 to 5 took the deceased Anil Maruthi Kambar in a Maruthi car towards Hubli-Dharwad Road, near Rainala village and committed his murder for gain and have taken gold ingots, jewels and cash from the deceased and thereby they had committed the offence punishable under Section 302 r/w 34 of IPC. The learned Sessions Judge further held that the prosecution proved that on the above date, the accused persons after committing murder of the deceased Anil Maruthi Kambar, threw his body near a bridge at ‘Kanive’ on Chikmagaluru-Kadur road, in order to screen of the offence and thereby committed an offence punishable under Section 201 r/w 34 of IPC. Accordingly by the impugned Judgment and order of conviction and sentence dated 30.12.2014, the Sessions Court convicted Accused Nos.1 to 5 for the offences punishable under Sections 302 and 201 r/w 34 of IPC and sentenced them to undergo
9 imprisonment for life and to pay fine of Rs.15,000/- each for the offence punishable under Section 302 r/w 34 of IPC and rigorous imprisonment for three years for the offence punishable under Section 201 r/w 34 of IPC. Hence, these criminal appeals are filed by Accused Nos.1 to 5.
We have heard the learned counsel for the parties to the lis.
II. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE ACCUSED Nos.1,2 AND 5
Sri Hashmath Pasha, learned senior counsel for the appellants in Criminal Appeal No.270/2015 (i.e., Accused Nos.1,2 and 5) contended that the entire case of the prosecution is based on the circumstantial evidence. The charge was framed for the offences punishable under the provisions of Sections 302 and 201 r/w 34 of IPC. The statement – Ex.P3 by PW.2 to PW.25 – PSI is based on the UDR registered by PW.25 on 31.10.2012. Accordingly, the
10 accused persons were arrested on 2.11.2012 and 3.11.2012 and remanded and produced on 3.11.2012. The accused persons can be retained in Police custody only for 15 days under Section 161 of the Code of Criminal Procedure.
He would further contend that the circumstantial evidence has to be established by the prosecution beyond all reasonable doubt. Mere recovery of MOs.1 to 5 – gold ingots and jewelry, MOs.6 to 9, 11 – cash by PW.15 at the instance of the accused persons is not a ground to convict them under sections 302 and 201 r/w 34 of IPC in the absence of any corroborative evidence. He would further contend that the prosecution must prove that MOs.1 to 5 and MOs.6 to 11 were in possession of the deceased as on the date of the offence. PW.18, who is the owner of the jewelry shop under whom the deceased was working, has not claimed that MOs.1 to 5, 6 to 11 belong to him.
11 8. He would further contend that PW.20, who was the Purchase Manager of the Nelli Jewellers, Chennai has stated that on 29.10.2012 he has given 605.8 grams of gold to the deceased under voucher Ex.P31. PW.16 stated that he has given 135 grams of gold to the deceased on 27.10.2012. PW.31 stated that he has given 400 grams of gold bars to the deceased in the end of October-2012. He would further contend that PWs.16, 20 and 31 not claimed MOs.1 to 4 – gold jewelry and Mo.5 – two gold biscuits nor PW.18 authorized PWs.16, 20 and 31 to hand over the jewels and cash to the deceased. He would further contend that Ex.P29, Ex.P30 and Ex.P31 – vouchers by PWs.16, 20 and 31 are in the form of slips. No other documents including registered books are produced for having entrusted the gold and cash to the deceased. Therefore, the impugned judgment and order of conviction against Accused Nos.1 to 5 cannot be sustained.
12 9. He would further contend that it was not prevented to PWs.16, 18, 20 and 31 to produce ledger books to prove the regular business transactions between them and in the absence of the same, Ex.P29, Ex.P30 and Ex.P31 – slips cannot be believed and not admissible as the same is contrary to Section 32(2) of the Evidence Act. On that ground alone, the impugned Judgment and order of conviction is liable to be set aside. He would further contend that the evidence of PW.21 that he collected 150 grams of gold on 30.10.2012 at the Railway Station from the deceased after paying an amount of Rs.4,18,500/-, cannot be believed as PW.21 has not shown the same in his Income Tax returns and same was admitted by him in the cross-examination. He would further contend that arrest of the accused and seizure of MOs.1 to 11 and 13 not proved by the prosecution beyond reasonable doubt. PW.15 – PSI stated on oath that PW.13 – Police Constable has produced Accused Nos.1 and 2 on 2.11.2015 at 6.15 p.m and PW.13
13 has not conducted any mahazar at the place where Accused Nos.1 and 2 were apprehended by him nor submitted any report to PW.15 and he is not a signatory to Ex.P9 – mahazar effected in the Police Station. The Prisoners’ Search Register (PSR) maintained by the Police Station of PW.15 is also not produced.
He further contended that Ex.P9 – mahazar does not depict as to who have apprehended the accused and PW.11 – panch witness stated that on 2.11.2012, Accused Nos.1 and 2 were in the Police Station at 9.00 a.m. He would further contend that the evidence of PWs.11,13 and 15 are contradictory to one another and cannot be believed. Therefore from the arrest of Accused Nos.1 and 2, the prosecution has not proved the case beyond reasonable doubt. He would further contend that MOs.1 to 11 and 13 not kept in the safe custody by packing and seal. PW.14 – Police Constable stated that on 3.11.2012 at about 5 a.m., Accused Nos.3 to 5 were standing in the
14 Basaveshwara Circle of Gokak. PW.15 – PSI stated that on 3.11.2012 at 6 a.m., PWs.13 and 14 produced the accused Nos.3 to 5 before the Police Station and he effected their arrest and recorded their voluntary statements as per Ex.P23 to Ex.P25. He would further contend that PW.15 in the examination-in-chief has stated that he has recorded the voluntary statements of the Accused Nos.3 to 5 as per Ex.P23, Ex.P24 and Ex.P25 {Ex.P23(a), Ex.P24(a) and Ex.P25(a) are signatures of Accused Nos.3,4 and 5} to the effect that whatever share obtained by them in gold and cash produced before PW.15. Mere recovery of cash and jewelry and marking of MOs.1 to 5 and 6 to 11 and also marking the voluntary statements are not substantive evidence. He would further contend that except the voluntary statements of Accused Nos.3,4 and 5 as per Ex.P23 to Ex.P25, there is no other evidence of PW.15 leading to discovery of fact. In the absence of the same,
15 the prosecution failed to prove the case beyond reasonable doubt.
He would further contend that mere confession statement without proof of contents and not disclosing the place of concealment of fact, is contrary to the provisions of Sections 25,26 and 27 of the Evidence Act. He would further contend that CW.21 not examined before the Court. PW.11 was secured by the Police (selected witness) and he is known to PW.18. The averments made in paragraph-11 of the examination-in-chief by PW.15 not stated in the voluntary statements of Accused Nos.3 and 4 as per Ex.P23 and 24 and the father-in-law of the deceased is not examined by the prosecution. The recovery of MOs.1 to 12 not recorded in the statement of diary of the Property Form Register and not reported to the jurisdictional Magistrate. On that ground also, the impugned Judgment and order of conviction and sentence is liable to be set aside. He would further contend that PW.34 – Investigating Officer filed an
16 application on 2.11.2012 for further police custody and the same is contrary to law and cannot exceed 15 days. The mahazar – Ex.P7 and recovery of MOs.1 to 14 not proved the incriminating evidence against the accused persons. Therefore, he sought to allow the appeal by setting aside the impugned Judgment and Order of conviction and sentence.
In support of his contentions, learned senior counsel for the Accused Nos.1,2 and 5 relied upon the following judgments:
Vijayakumar v. State - ILR 1994 Kar. 491 – (paragraph-6)
M. Abbas v. The State of Karnataka - 1996 Crl.LJ 317 - (paragraph-7)
Pulukuri Kottayya v. King Emperor – AIR (34) 1947 PC 67 (paragraph-10 .. relating to confession statement)
CBI v. Anupam J. Kulkarni - (1992)3 SCC 141 (paragraph-8)
Vijender v. State of Delhi - (1997)6 SCC 171 (paragraphj-17)
Mohd. Aman and another v. State of Rajasthan - (1997)10 SCC 14 (paragraph-9)
Raj Kumar v. State (NCT of Delhi) - AIR 2017 SC 614 (Paragraph-10)
Nagappa Dondiba v. State of Karnataka - AIR 1980 SC 1753 (paragraph-3)
III. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE ACCUSED Nos.3 AND 4
Sri Girish B Baladare, learned counsel for the appellants in Criminal Appeal No.376/2015 and Criminal Appeal No.642/2015 (i.e., Accused Nos.3 and 4) while adopting the arguments advanced by the learned senior counsel for Accused Nos.1, 2 and 5, has contended that absolutely there is no material against Accused Nos.3 and 4 except recovery and the entire case depends on the circumstantial evidence. The prosecution has failed to prove that the accused are involved in the homicidal death of the deceased beyond all reasonable doubt. Therefore, he
18 sought to allow the appeals by setting aside the impugned Judgment and order of conviction and sentence.
IV. ARGUMENTS ADVANCED BY THE LEARNED ADDL. SPP
Per contra, Sri Vijayakumar Majage, learned Addl. SPP for the State while justifying the impugned Judgment and order of conviction and sentence has contended that the categorical evidence of PWs.13, 15, 18 and 19 and the voluntary statements of the accused persons clearly indicate that the accused persons are involved in the extraction of gold and jewelry from the deceased and they are the cause for the homicidal death of the deceased. He would further contend that PW.18 has categorically stated in the evidence that he has authorized the deceased to go to Chennai and to receive the gold ingots and cash from PWs.16, 20 and 31. The material on record clearly depict that the evidence of PW.18 is with regard to recovery of MOs and not with regard to homicidal death. PW.21 has
19 stated on oath that he has paid cash of Rs.4,18,000/- to the deceased after receipt 150 grams of gold. PW.16 stated that on 27.10.2012, he has given 135 grams of gold to the deceased. It is further contended that PW.20 has stated on oath that he has given 605.8 grams of gold in favour of the deceased on 29.10.2012 on the instructions of PW.18 and PW.31 has stated he has given 400 grams of gold to the deceased under Ex.P30 voucher. There are no inconsistencies in the evidence of PW.16, PW.18, PW.20 and PW.31 with regard to receipt of gold and cash. He would further contend that Ex.P20 is the Station House Diary dated 2.11.2012 and Accused Nos.1 and 2 had exclusive knowledge about the offence.
In the circumstances, he sought to dismiss all the appeals.
V. POINT FOR DETERMINATION
In view of the aforesaid rival contentions urged by the learned counsel for the parties, the point that would arise for consideration in these criminal appeals is:
Whether the appellants – Accused Nos. 1 to 5 have made out a case to interfere with the impugned Judgment and order of conviction and sentence, in exercise of the powers under the provisions of Section 374(2) of the Code of Criminal Procedure, in the facts and circumstances of the case ?
The entire prosecution case is based on the circumstantial evidence of PWs.2, 16, 18, 20, 21 and 31 and the recovery of MOs.1 to 5 & 6 to 11 (gold ingots and cash) at the instance of the accused persons based on their voluntary statements. It is the case of the prosecution that it has proved beyond reasonable doubt that the accused caused the homicidal death of the deceased by robbing gold jewelry and cash as per the charge. Though the accused have not adduced any evidence nor taken any defence in the statement recorded under Section 313 of the Code of Criminal Procedure, it is for the prosecution to prove the involvement of the accused persons with regard
21 to the homicidal death of the deceased based on the circumstantial evidence and link the accused to the incident that occurred as there is no eye witness to the incident. The circumstances, in the first place have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over all picture emerging from a consideration of the diverse circumstances and their conjoint effect may be themselves appear innocuous.
VI. WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION
In order to re-appreciate the case of the prosecution, it is relevant to consider the evidence of the
22 prosecution witnesses and the material documents relied upon:
PW.1 – Geetha w/o deceased Anil Kambar has stated on oath that the deceased was working in the Jewelry shop of PW.18 – Vijayakumar Bapna and her husband had been to Chennai on 26.10.2012 and on 29.10.2012, he had telephoned from Chennai that he is returning towards Bangalore. On 30.10.2012, her husband had informed from Bangalore that he is coming back to Gokak, but not reached though late night. On 31.10.2012, she enquired PW.18 – owner of the Jewelry shop and thereafter went to Gokak Police Station and informed about non-return of her husband and then, Gokak Police informed that one unknown male dead body has been found at Chikmagalur. On 1.11.2012 at 7.30 a.m., she went to Chikkamgalur and saw the dead body and identified it as the dead body of her husband and accordingly filed the complaint before the jurisdictional Police as per Ex.P2.
PW.2 – Parashuram is the first informant and his statement is at Ex.P3, on the basis of which UDR-FIR was registered. He is the panch witness for the spot mahazar - Ex.P4. He turned hostile to the case of the prosecution.
PW.3 – Kenchaiah, who is the panch witness for spot mahazar – Ex.P4 turned hostile to the case of the prosecution.
PW.4 – Vasthupalbapna, who the inquest panch is the brother of PW.18 - owner of Jewelry shop where the deceased was working and he has deposed that on coming to know the death of the deceased Anil Kambar, he came to Chikkamgaluru and saw the dead body of the deceased and the Police conducted inquest as per Ex.P5. He supported the case of the prosecution.
PW.5 – Smt. Susheela, mother-in-law of the deceased has deposed that the deceased Anil Kambar was her son-in-law and he had gone to Chennai and not
24 returned and hence she and PW.1 went to inform Gokak Police Station. Later, she learnt the dead body found in Chikmagalur and she went and saw the dead body. She gave her statement during inquest and supported the case of the Prosecution.
PW.6 – Girish and PW.7 – V.G. Mahesh, who are the panch witnesses for Ex.P6 – mahazar have stated that on 12.11.2012 Ghataprabha Police have given transfer of jewels and currency notes seized to Chikmagaluru Police under Ex.P6 – mahazar. They have turned hostile to the case of the prosecution.
PW.8 – B. Lokesh, who is the Goldsmith Appraiser has deposed that while giving transfer of jewels by Ghataprabha Police under mahazar – Ex.P6, he has appraised jewels which were seized under Ex.P6 – mahazar. He turned hostile to the case of the prosecution.
PW.9 – Venkatesh, who is the panch for seizure of car from Sumkh Garage under mahazar – Ex.P7 has turned hostile to the case of the prosecution.
PW.10 – Hussain, who is the panch witness for Ex.P7 – mahazar regarding seizure of car, turned hostile to the case of the prosecution.
PW.11 – Narayana Bhimappa Zadakina, who is the panch for seizure of gold jewels (MOs.1 and 2) and currency notes (MO.7) in Ghataprabha Police Station under mahazar – Ex.P9, has not identified the accused. He deposed that on 3.11.2012, Police called him to the Police Station regarding seizure of MO.5 gold ingots and cash – MO.8 under mahazar – Ex.P11. He also deposed that again, he was called and accused were shown and taken to the houses of Accused No.3 and Accused NO.5 and seized mobiles, cash and gold jewels. He turned hostile to the case of the prosecution.
PW.12 – Bharath, who is the panch witness for Ex.P15 – mahazar has stated that the Police Inspector has taken him from Railway station to Dhaba and told that murder has taken place and obtained his signature. He has not identified the accused. He has turned hostile to the case of the prosecution.
PW.13 – Dundappa Mallappa Belavi – CHC No.2093 stated on oath that on 2.11.2012 at 6.00 p.m. while on gust duty, two persons have come from Railway Station of Ghataprabha and moving suspiciously and consequently, they were produced before the PSI in Ghata Prabha Police Station. On enquiry, it revealed that they were Anand (Accused No.1) and Sachin (Accused No.2) involved in the murder case and gold ingots and cash were seized from them. On 4.11.2012, he along with other Police produced Accused Nos.1 to 5 before the Chikmagalur Rural Police Station. He supported the case of the prosecution.
PW.14 – Jeevappa Thukappa Haddanavar – CPC 1952 stated on oath that on 3.11.2012, he along with PSI apprehended Accused Nos.3 to 5 at Bassaveshwara Circle of Ghata Prabha and further on 10.11.2012, he was deputed to carry seized articles and produced before CPI – Investigating Officer of Chikmagaluru and they were seized under mahazar – Ex.P6. Mos. 1 to 12 are those articles. He supported the case of the prosecution.
PW.15 – Ravikumar Shivalingappa Kappathanavar, PSI stated on oath that on 2.11.2012 at 6.15 p.m. while he was SHO, PW.13 – HC has produced Accused Nos.1 and 2. On enquiry, they confessed murder of the deceased Anil Kambar and from them, cash and gold ingots were seized under mahazar – Ex.P9. He also deposed with regard to arrest of Accused Nos.3 to 5 and seizure of gold ingots and cash from them. He supported the case of the prosecution.
PW.16 – Vijayasingh – Sri Gold Company Product Manager has stated on oath that the deceased Anil Kambar had come on 27.10.2012 to buy gold for PW.18. He had sold 135 grams gold under voucher Ex.P29. Later after 6-7 days, learnt the murder of the deceased Anil Kambar. He supported the case of the prosecution.
PW.17 – Shivanand Lakshman Kadagavi, Employee in Jewelry shop of PW.18 stated on oath that Accused No.3 was working in the shop of PW.18 alongwith him. Accused No.4 was working as driver in the jewelry shop of PW.18. Deceased Anil used to go for purchase of gold to Chennai, Hyderabad. After 2 days of going to Chennai, he learnt murder of the deceased. He identified Accused Nos.3 and 4. He supported the case of the prosecution.
PW.18 – Vijayakumar Bapna, owner of Jewelry shop in Gokak, stated on oath that the deceased Anil
29 Kambar was working in his shop as Salesman. On his instructions, the deceased went to Chennai for collecting gold ingots and to place order of gold jewels. On 30.10.2012, the deceased not returned. On 31.10.2012, he learnt the murder has taken place and went and saw the dead body of the deceased. He further stated that he has authorized the deceased to purchase the gold from PWs.16, 20 and 31 and also requested the said Jewelry shop owners to hand over the gold in favour of the deceased. He supported the case of the prosecution.
PW.19 – Raghavendra Narayana Pattar, Goldsmith in Gathaprabha stated on oath that in November 2012, Ghataprabha Police called him for weighing gold and while weighing, photo was taken and Ex.P10 is the photo. He is also panch for recovery of gold ingot and weighing and regarding that, he has given certificates – Ex.P21 and Ex.P26. Ex.P12 and Ex.P14 are photos and MOs.3 and 4 are gold ingots. He supported the case of the prosecution.
PW.20 – Vijayakumar, Purchase Manager, Nelli Jewelers, Chennai has deposed that PW.18 used to buy gold from them. On 29.10.2012, the deceased Anil Kambar had come and colleted 605.800 grams gold ingot and later, learnt murder of the deceased. Ex.P31 – receipt was issued by him. He supported the case of the prosecution.
PW.21 – Aseemmalik has stated on oath that on 30.10.2012 at 6.00 a.m. the deceased met him at Bangalore Railway station. He received 150 grams of gold from the deceased as ordered with PW.18 and in turn, he gave cash of Rs.4,18,000/- to the deceased and later learnt murder of the deceased. He supported the case of the prosecution.
PW.22 – Srinivas, Mechanic in the Garage has stated that Police called him to the Police Station and taken photo. Police came to the Garage on 22.11.2012 and
31 seized the car under the mahazar – Ex.P7. He turned hostile to the case of the prosecution.
PW.23 – T.N. Devaraj, Police Constable in Chikmagaluru Rural Police Station stated on oath that on 1.11.2012 in UDR case No.53/2012, he was deputed to carry dead body of the deceased Anil Kambar for post- mortem examination. After post-mortem examination, he handed over the dead body to his wife – Geetha (PW.1). Ex.P33 is the report. He supported the case of the prosecution.
PW.24 – Shivakumaranaik, P.C. No.611 has stated that on 1.11.2012 in Crime No.335/2012, he carried the FIR – Ex.P34 and delivered the same to the Magistrate. He supported the case of the prosecution.
PW.25 – Halappa, PSI of Chikkamgalur Police Station stated on oath that on 31.10.2012 at 4.30 p.m. when he was working as SHO, PW.2 gave complaint about
32 finding of unknown dead body, upon which UDR was registered under UDR NO.53/2012. Ex.P3 is the complaint and Ex.P35 is the UDR FIR. Thereafter, he visited the spot and drew spot mahazar – Ex.P4 and prepared Ex.P36 – sketch of spot and thereafter shifted the dead body to Mortuary of M.G. Hospital as per requisition and published look out notice for tracing of dead body. He supported the case of the prosecution.
PW.26 – Madhu, PSI of Rural Police Station of Chikmagalur stated on oath that on 1.11.2012 he took up further investigation from PW.25 – PSI and conducted inquest as per Ex.P5 in presence of PW.1 – Geetha. Later, PW.1 – Geetha lodged a complaint as per Ex.P2, upon which FIR in Crime No.335/2012 registered and submitted FIR – Ex.P34. Thereafter sent the dead body for post- mortem and after post-mortem examination, P.C. 235 given acknowledgment for handing over dead body to the wife of the deceased. He supported the case of the prosecution.
PWs.27 and 28 are panch witnesses for Ex.P38 – mahazar and they turned hostile to the case of the prosecution.
PW.29 – Raghavendra Prakash, Mobile SIM Salesman in Hubli has stated on oath that about one year back, near Hubli Railway station, Chikmagalur Police had brought some boys and drawn mahazar – Ex.P15 and it contains his signature. Thereafter, the Police took him to Poona-Bangalore bypass road and alongwith the Police, there were 4 to 5 boys who were present near the Railway Station, and on the said Poona-Bangalore Bypass road, the Police took certain photographs. He turned hostile to the case of the prosecution.
PW.30 – Dr. Gangadhar stated on oath that on 1.11.2012, he conducted post-mortem examination over the dead body of the deceased Anil Kambar and Ex.P40 is the PM report. He opined that the death was due to shock
34 as a result of multiple injuries over face, chest and testicles. He supported the case of the prosecution.
PW.31 – Nataraj, Accounts Manager, Original Kerala Jewelers, Chennai has stated on oath that he knew PW.18 and he used to sell gold to him. He also knew the deceased Anil Kambar, employee of PW.18. In October- 2012, the deceased Anil Kambar had come to Chennai and he had given gold bars of 400 grams under Ex.P30 voucher and later learnt murder of the deceased Anil Kambar. He supported the case of the prosecution.
PW.32 – Anath Ashoka Kathigere, who is the owner of the Maruthi Alto Car bearing No.KA-02-MA-2587 having purchased from one Basavaraj, stated on oath that Accused NO.3 is his son-in-law and denied that this car was taken by Accused Nos.3 and 4 and used for the commission of murder of the deceased Anil Kambar. He denied the
35 voluntary statement made before the Police as per Ex.P42. He turned hostile to the case of the prosecution.
PW.33 – Dayananda Mallappa Maleppagola, who is the Photographer denied having taken photos as per the request of Ghataprabha Police on 2.11.2012 in Police Station as per Ex.P10 and again on 3.11.2012 at the places shown by Accused Nos.3 to 5 under Ex.P12 and Ex.P14. He turned hostile to the case of the prosecution.
PW.34 – Krishnaraju, who is the
CPI, Chikamagaluru, took further investigation from PW.26 on 1.11.2012 and after investigation filed the charge sheet. He supported the prosecution case.
VII. FINDINGS RECORDED BY THE LEARNED SESSSIONS JUDGE
Based on the aforesaid evidence of the prosecution witnesses and the documents relied upon, the learned Sessions recorded a finding that from the versions
36 of PWs.11, 13, 14 and 19, it is seen that their versions corroborate with one another. Apart from that, the seizure of gold articles, cash and mobile - MOs.1 to 12 by the Ghataprabha Police becomes more important rather than the receipt of the said articles by the Chikmagaluru Rural Police under Ex.P6 – mahazar. The seizure of MOs.1 to 11 by the Ghataprabha Police is at the instance of the accused persons, which has been supported by PWs.11 and 19 who are independent witnesses, apart from the versions of PWs.15 and 13. Therefore, seizure of MOs.1 to 11 at the instance of the accused persons has been proved by the prosecution beyond reasonable doubt. The learned Sessions Judge further recorded a finding that the evidence of PW.18 would certainly indicate that Accused Nos.3 and 4 had knowledge about the fact that deceased was often sent to Chennai by PW.18 to collect gold ingots and jewels from the Jewelry shops at Chennai. Furthermore, the absence of accused NO.4 from his work 3-4 days prior to the incident,
37 would certainly indicate that Accused NO.4 had knowledge about the visit of the deceased Anil Kambar to Chennai to collect gold ingots and gold jewels from the above said Jewelers at Chennai. Therefore, it can be presumed that the accused persons had knowledge about the deceased having gold ingots and jewels in his possession prior to his death, through Accused NO.4. Accordingly, based on the oral and documentary evidence, the learned Sessions Judge convicted accused persons.
VIII. CONSIDERATION
As already stated above, the entire case of the prosecution is based on the circumstantial evidence as there is no eye witness to the incident and there is no last seen theory in the present case.
Admittedly, the charge framed by the Sessions Court is that on 30.10.2012 at about 3.30 to 4.00 p.m. the accused persons with the common intention committed the
38 murder of the deceased Anil Kambar on Hubli-Dharwad road, near Rainale village, for personal gain and have robbed gold and cash from the deceased and after committing the murder of the deceased, threw his body in a ’kanive’ on Chikmagalur-Kadur road, in order to screen the offence, thereby committed the offences punishable under the provisions of Section 302 and 201 r/w 34 of IPC. The accused persons have not pleaded guilty and claimed to be tried. Based on the oral and documentary evidence adduced, the learned Session Judge proceeded to convict the accused persons under Sections 302, 201 r/w 34 of IPC.
On meticulous examination of evidence on record, particularly the evidence of PWs.1, 16, 18, 20, 21 and 31, the prosecution proved that the deceased Anil Maruthi Kambar was working as Salesman under PW.18, who has authorized the deceased to purchase the gold jewels and gold ingots from PWs.16, 20 and 31, from whom the deceased has purchased the gold on behalf of
39 PW.18. Though there are many omissions and contradictions in the evidence of the prosecution witnesses, the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the court has to take strict note thereof. It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented.
40 A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
The material on record proved the homicidal death of the deceased and recovery made by the Investigating Officer as per Mos.1 to 5 – gold ingots/jewels and Mos.6 to 9 and 11 – cash by PW.15 on the basis of the voluntary statements made by the accused persons, cannot be a ground to convict the accused persons for the offences punishable under sections 302, 201 r/w Section 34 of IPC. The prosecution failed to prove that the circumstances beyond reasonable doubt conclusively point to the involvement of the accused persons in the crime for the offences punishable under Sections 302, 201 r/w 34 of IPC. The chain leading to sole conclusion that it is the accused persons and nobody else has committed the crime, is not established. Firstly that on the date of the alleged incident, the presence of the accused not proved. Secondly, the gold and cash belonged to the deceased, was in possession
41 of the accused persons and such possession has not been explained by the prosecution. Even if such circumstances are assumed to be proved against the accused, that mere recovery of gold jewelry of the deceased from the accused persons or production of same by the accused persons in the course of investigation, howsoever suspicious cannot be conclusive of the question of the accused having committing the offence. As per illustration (a) of Section 114 of the Indian Evidence Act, 1872 though recovery of articles can lead to presumption that the accused had committed robbery or received the stolen property, unless there are circumstances to show the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offences punishable under Section 302 r/w 34 of IPC.
Admittedly in the present case, last seen theory not proved and the learned Sessions Judge proceeded to convict the accused only on the basis of the recovery and
42 absolutely no materials produced before the Court about the involvement of Accused Nos.1 to 5 with regard to homicidal death and the Investigating Officer has not collected the call details of the accused Nos.1 to 5 though their mobiles were seized. Mere recovery of the gold jewelry and cash at the instance of the accused persons based on their voluntary statements, cannot be a ground to convict the accused and absolutely no materials produced by the prosecution to show that the robbery and murder form part of the same transaction. The presumption that the accused committed murder cannot be drawn merely based on the recovery. The entire case of the prosecution against the accused persons only based on the recovery of Mos.1 to 5 – gold jewels and cash – Mos.6 to 9 and 11. Absolutely there is no material to prove that the accused persons have committed the murder of the deceased so as to attract the provisions of Section 302 of IPC.
43 56. The provisions of Section 27 of the Indian Evidence Act, 1872 reads as under:
“27. How much information received from accused may be proved:
Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved:
A careful perusal of the said provision, makes it clear that the said section based upon the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But where the facts are such as indicting reasonable doubt as regards the guilt of the accused benefit of the same must be availed by him.
44 58. The provisions of Section 392 of IPC provides for punishment for robbery, which reads as under:
“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.”
By careful reading of the said provisions, it makes it clear that the essential ingredients of Section - 392 of IPC are as follows:
Accused committed theft. 2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
(ii) fear of instant death, hurt or wrongful restraint. 3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft.
45 60. It is to be noted that Section 392 of IPC provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise. Section 390 of IPC which defines “robbery” reads as follows:
“390. Robbery.—In all robbery there is either theft or extortion.
When theft is robbery: Theft is ‘robbery’ if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery: Extortion is ‘robbery’ if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of
46 instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation: The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.”
The said provision makes it clear that robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
47 62. The words “for that end” in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
The provision itself provides, when the highway robbery is committed, deterrent punishment is called for. In the present case, the evidence on record clearly established the commission of offence by the appellants was on a public road. There is no dispute that it was a highway. It is also not in dispute that the offence was committed at about 3.30 or 4.00 p.m.
IX. JUDGMENTS RELIED UPON
The coordinate Bench of this Court in the case of Vijayakumar v. State reported in ILR 1994 Kar 491 held at paragraph-6 as under:
48 6. Our attention was drawn by the Counsel for the appellant to the manner of recording evidence by the Sessions Court, particularly with regard to most material circumstance of the accused giving information under Section 27 of the Evidence Act leading to the discovery of fact. Our attention was particularly drawn to that part of the testimony recorded by the Trial Court which shows that practically no evidence was given in this behalf by the Investigating Officer. The learned Judge has recorded the evidence as follows:— “The accused was present in the police station as produced by P.C. 3286 & 2004. I recorded the voluntary statement of the accused, as per Ex. P. 17. I arrested the accused and then seized the blood stained shirt and subjected it to P.F. No. 71/91 and under Mahazar Ex. P-3.” It was rightly urged on behalf of the appellant that taken by itself, Ex. P. 17 cannot go in substantive evidence as Ex. P. 17 would provide corroboration to the substantive evidence that should be given in Court by the witness speaking about this information. The Trial Court ought to have insisted
49 on the prosecution to lead substantive evidence in this behalf before making use of Ex. P. 17. Thus practically the Investigating Officer P.W. 22 did not state anything regarding the information said to have been given to him by the accused. Section 27 says that so much of the information that distinctly leads to the discovery of a fact alone is admissible in evidence and it is exception to Sections 25 & 26 of the Evidence Act. Therefore so much of the information as leads to discovery of a fact must be proved like any other fact and recording in the deposition or the prosecution leading evidence of an Investigating Officer that he recorded a particular statement as per certain record made by him and exhibited cannot take place of substantive evidence. Similarly we have come across certain contradictions being recorded only by referring to exhibits without reproducing exactly what is the contradiction or omission stated by a particular witness or Investigating Officer. Likewise, unless facts incorporated in the mahazar are spoken to by a particular witness in order to marking of a mahazar it does not amount to substantive evidence. It is unfortunate that many of the Sessions Judges have not understood this distinction and it has become a practice to take down depositions in the manner
50 stated above thus unnecessarily creating complications in the matter of acceptance or rejection of the evidence so given. It may also sometimes happen that even if a witness states what exactly was recorded in his own words, the Sessions Judges may find it a short cut to take down only as stated as per certain exhibits without taking down what exactly was the information given by the accused which could fall under Section 27 of the Evidence Act. Such a practice is wholly deprecable as even evidence given by witnesses according to law might sometimes not be reduced to writing while taking depositions only as a matter of convenience. We impress upon Courts below that such a practice of not taking down in the evidence of material witnesses what they actually deposed to in such situations would come in the way of proper appreciation of evidence and even good cases may be seriously affected by such casual and perfunctory recording. Such practice should be discontinued. With these observations, we find that practically there was no evidence for the Trial Court to find accused guilty. Appeal has to be allowed and it is allowed. Judgment of conviction and sentence imposed by the Trial Court are set aside and the accused is acquitted of the charge under Section 302
51 IPC. He shall be set at liberty forthwith. A copy of this Judgment shall be forwarded to the learned Trial Judge wherever he is.
The said view has been reconsidered by the Coordinate Bench of this Court in the case of M. Abbas v. The State of Karnataka reported in 1996 Cri LJ 317, wherein at paragraph-7 it is held as under: 7. The next piece of evidence relied upon by the prosecution is the recovery of certain incriminating articles, blood-stained clothes and weapons in pursuance of the voluntary statements alleged to have been made by the three appellants. It is the case of the prosecution that accused 1 and 2 were arrested on 8-1-1992 and they made voluntary statements as per Exs. P-29 and P-30. It is also the case of the prosecution that the accused 3 was arrested on 5-3-1992 at Bombay and he gave his voluntary statement as per Ex. P-45 before the police. The Trial Court has held in para 39 of its judgment that the said voluntary information is admissible in evidence under Section 27 of the Indian Evidence Act. P.W. 31 has stated that after he arrested accused 1 and accused 2 in this case they
52 volunteered the information regarding the properties involved in the case. His specific evidence is as follows: “accused 1 volunteered the information marked at Ex. P-29”. He has further stated as follows: “accused 2 volunteered the information as per Ex. P- 30”. But, this Court in the ruling, R. Vijayakumar @ Kumar @ Tailor Kumar v. State by Mahadevapura Police, Bangalore [1994 (1) Kar. L.J. 370 (DB) : ILR 1994 KAR 491.] , has held as follows: “Section 27 says that so much of the information that distinctly leads to the discovery of a fact alone is admissible in evidence and it is exception to Sections 25 and 26 of the Evidence Act. Therefore, so much of the information as leads to discovery of a fact must be proved like any other fact and recording in the deposition or the prosecution leading evidence of an Investigating Officer that he recorded a particular statement as per certain record made by him and exhibited cannot take place of substantive evidence”. This Court has further held as follows:—
53 “It may also sometimes happen that even if a witness states what exactly was recorded in his own words, the Sessions Judges may find it a short cut to take down only as stated as per certain exhibits without taking down what exactly was the information given by the accused which could fall under Section 27 of the Evidence Act. Such a practice is wholly deprecable as even evidence given by witnesses according to law might sometimes not be reduced to writing while taking depositions only as a matter of convenience. We impress upon Courts below that such a practice of not taking down in the evidence of material witnesses what they actually deposed to in such situations would come in the way of proper appreciation of evidence and even good cases may be seriously affected by such casual and perfunctory recording. Such practice should be discontinued. With these observations, we find that practically there was no evidence for the Trial Court to find accused guilty”. In this case also we are constrained to observe that the recording of the evidence regarding the voluntary statements by P.Ws. 31 and 36 is not proper. P.W. 36, who states about the voluntary statement of accused 3 has stated as follows:—
54 “I arrested accused 3 at 8 a.m. on 6-3-1992 and interrogated him accused 3 volunteered the information regarding the involved properties in this case. I reduced the same to writing as per Ex. P-45”. The alleged statements of the accused persons have been marked as per Exs. P-29, P-30 and P-45. But, they cannot be taken as substantive evidence as the concerned Investigating Officers have not stated as to what were the information given by the accused. Therefore, the alleged voluntary statements of the accused persons record as per Exs. P-29, P-30 and P-45 cannot be substantive evidence in this case.
While considering the provisions of Section 27 of the Indian Evidence Act, 1872, the Privy Council in the case of Pulukuri Kottayya v. King Emperor reported in AIR (34) 1947 Privy Council 67 held at paragraph-10 as under:
S. 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into
55 operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the “fact discovered” is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the
56 commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of S. 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information, relating to an object subsequently produced, it seems reasonable to suppose that the pursuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S. 26, added by S. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its
57 discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
The Hon’ble Supreme Court while considering the provisions of Section 167 of the Code of Criminal Procedure in the case of CBI v. Anupam J. Kulkarni reported in
(1992) 3 SCC 141 held at paragraph-8 as under:
Having regard to the words “in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole” occurring in sub-section
(2) of Section 167 now the question is whether it can be construed that the police custody, if any, should
58 be within this period of first fifteen days and not later or alternatively in a case if such remand had not been obtained or the number of days of police custody in the first fifteen days are less whether the police can ask subsequently for police custody for full period of fifteen days not availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days covered by the proviso. The decisions mentioned above do not deal with this question precisely except the judgment of the Delhi High Court in Dharam Pal case 1982 Cri LJ 1103. Taking the plain language into consideration particularly the words “otherwise than in the custody of the police beyond the period of fifteen days” in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days. To this extent the view taken in Dharam Pal case 1982 Cri LJ 1103 is correct.
The Hon’ble Supreme Court while considering the provisions of Section 162 of the Code of Criminal Procedure and Section 27 of the Evidence Act in the case of
59 Vijender v. State of Delhi reported in (1997) 6 SCC 171 held at paragraph-17 as under:
Another elementary statutory breach which we notice in recording the evidence of the above witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that in consequence of information received from the three appellants on 30-6-1992 they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was recovered on 27-6-1992 and therefore the question of discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case — evidence could not be led in respect thereof.
The Hon’ble Supreme Court while considering the provisions of Section 162 of the Code of Criminal Procedure in the case of Mohd. Aman v. State of Rajasthan
60 reported in (1997) 10 SCC 44 held at paragraph-9 as under: 9. To prove the role of Mohd. Yusuf (the other appellant in Criminal Appeal No. 1749 of 1996) the prosecution relied upon the find of his fingerprint on a glass tumbler and his footprints in the house of the appellant (sic deceased), recoveries of four silver rings belonging to the wife of the deceased and a knife pursuant to his statement. It is rather surprising that even though the investigating agency claimed to have made a searching examination of the house of the deceased on 14-4-1983 and, to have seized on that day sixteen articles, four of which contained fingerprints, the glass tumbler containing the fingerprints was seized and the footprints were noticed on 24-4-1983. When considered in the context of the fact that he was in custody of the police at that time the possibility of fabrication of evidence to implicate him as contended by him, cannot be altogether ruled out. This apart, some of the reasons which weighed with us for not accepting the evidence regarding the find of fingerprints, namely that there is a missing link between the identity of the articles seized and identity of the articles examined by the Fingerprint
61 Bureau and non-production of the glass tumbler during trial also persuade us not to accept the evidence adduced in proof of the above circumstance. So far as the footprints are concerned, another reason for which we feel it unsafe to accept the evidence led in this regard is that the sample footprints were not taken before a Magistrate. This apart the science of identification of footprints is not a fully developed science and therefore if in a given case — unlike the present one — evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence. That brings us to the evidence relating to the recovery of the four silver rings (Exts. P-5 to P- 8) belonging to the wife of the deceased pursuant to the statement made by Mohd. Yusuf. To persuade the court to hold that the above circumstance stood established the first and the foremost fact which the prosecution was required to prove was that those articles belonged to the wife of the deceased and that they were stolen at the time of the commission of the murder. Having gone through the evidence on record we are constrained to say that the prosecution has not been able to establish those two facts and, therefore, we need not go into the
62 question whether the evidence led by the prosecution relating to their recovery from Mohd. Yusuf is reliable or not. The first information report, that was lodged by Sabir Hussain (PW 10), did not give any list of articles that were stolen. He however claimed to have later on given a written statement containing such a list to the investigating officer and this statement was exhibited. In our considered view the trial court was not justified in entertaining the statement as an exhibit because it was hit by Section 162 CrPC. Be that as it may, PW 10 and Bano (PW 2), another relative of the deceased, testified that within a day or two of the murder they could ascertain what articles were missing from the house. The evidence of these two witnesses on this aspect of the matter cannot be safely relied upon for they admitted that they did not have access to the house till 1-5-1983 as it was in custody of the police and therefore they could not have occasion to know what articles were stolen. Even if we proceed on the assumption that the seized articles belonged to the wife of the deceased the prosecution has led no evidence, either direct or circumstantial, to prove that they were stolen at or about the time when the murder took place. In other words, unless the prosecution conclusively establishes that the articles
63 recovered were stolen when the murder was committed, and not on an earlier occasion, there would be a missing link in the chain so far as the specific accusation levelled against the accused is concerned. Once it is found that the evidence relating to find of footprints and fingerprints of the appellant and the recovery of the four silver rings cannot be safely relied upon, the proof of the other two circumstances, namely that a bloodstained knife was recovered after fifteen days of the incident pursuant to the statement of the accused and that few simple injuries were found on his person on 20- 4-1983 when he was arrested would only raise a strong suspicion against him and not a conclusive inference of his guilt. The conviction of Mohd. Yusuf therefore cannot also be maintained.
The Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda –vs- State of Maharashtra reported in (1984)4 SCC 116 while considering the law on the point of appreciation of cases based on circumstantial evidence, has held at paragraphs 153 and 154 as under:
64 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
65 (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
The material on record clearly depicts that though there are ingredients in the charge framed by the Sessions Court with regard to robbery for personal gain and homicidal death of the deceased so as to attract the
66 provisions of Sections 392 and 302 of IPC, mere non- mention of the provisions of Section 392 in the ‘charge’ would not be a bar to invoke the provisions of Section 392 against the accused, where the recovery of the gold ingots and jewelry from the accused and production of the same by the accused during the course of investigation can lead to presumption that the accused has committed the robbery or received the stolen property. But, there are no circumstances proved beyond reasonable doubt by the prosecution that the robbery and the murder took place on the same transaction. The accused would not be liable for the offence under Section 302 of IPC as the prosecution has not proved the chain of circumstances leading to involvement of the accused in the homicidal death of the deceased.
It is the case of the prosecution that on 30.10.2012 at about 3.30 or 4.00 p.m., the accused persons got contact with the deceased and took him in a
67 Maruthi car towards Hubli and committed his murder near Rainala village on Hubli-Dharwad road and robbed gold ingots and jewelry from the deceased. The material on record not established beyond reasonable doubt the involvement of the accused in the homicidal death of the deceased on Hubli-Dharwad Highway road, but based on the suspicious circumstances, PW.13 apprehended Accused Nos.1 and 2 and produced before PW.15 and based on their voluntary statements, the Investigating Officer recovered MOs.1 to 5 – gold ingots and jewelry and MOs.6 to 9 and 11 – cash. The presumption can be drawn that the robbery was committed for gain, on the highway at about 3.30 to 4.00 p.m. and the accused are liable to punished for the offence punishable under Section 392 of IPC and not for the offences punishable under Section 302 and 201 r/w 34 IPC.
The evidence on record clearly depicts that in the entire evidence on behalf of the prosecution, none of the witnesses including the wife of the deceased – PW.1, PWs.16, 18, 21 and 31 have stated anything about the involvement of the accused persons with regard to homicidal death of the deceased. Absolutely no material is produced by the prosecution to prove the involvement of the accused persons in the homicidal death of the deceased, except the recovery of jewels and cash based on the voluntary statements of the accused.
On re-appreciation of the entire oral and documentary evidence on record and in the light of the principles enunciated in the judgments stated supra, we are of the considered opinion that the prosecution able to prove the recovery of gold ingots, gold jewelry and cash from the accused persons based on their voluntary statements, but failed to prove the involvement of the accused persons in the homicidal death of the deceased beyond reasonable
69 doubt. As per illustration (a) of Section 114 of the Indian Evidence Act, 1872 though recovery of articles can lead to presumption that the accused had committed robbery or received the stolen property, unless there are circumstances to show the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offences punishable under Section 302 r/w 34 of IPC. In the circumstances, the learned Sessions Judge erred in holding the accused guilty for the offence punishable under section 302 of IPC.
As already stated supra, the material on record clearly depicts that though there are ingredients in the charge framed by the Sessions Court with regard to robbery for personal gain and homicidal death of the deceased so as to attract the provisions of Sections 392 and 302 of IPC, mere non-mention of the provisions of Section 392 in the ‘charge’ would not be a bar to invoke the provisions of Section 392 against the accused, where the recovery of the
70 gold ingots and jewelry from the accused and production of the same by the accused during the course of investigation can lead to presumption that the accused has committed the robbery or received the stolen property. Considering the totality of facts and circumstances of the case and on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, the Accused Nos.1 to 5 are liable to be convicted for the offence punishable under Section 392 of IPC. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case Raj Kumar alias Raju –vs- State (NCT of Delhi) reported in AIR 2017 SC 614, wherein the Hon’ble Supreme Court while considering the provisions of Section 3 and Section 114 – Illustration (a) of the Evidence Act, at paragraphs 10, 11 and 13 held as under:
Learned counsel for the appellant would contend that the aforesaid circumstances do not conclusively point to the involvement of the appellant-accused in the crime. The chain leading to the sole conclusion
71 that it is the accused persons and nobody else who had committed the crime is not established by the three circumstances set forth above, even if all of such circumstances are assumed to be proved against the accused. Reliance has also been placed on the decision of this Court in Sanwat Khan v. State of Rajasthan [Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54 : 1956 Cri LJ 150] , wherein this Court had taken the view that recovery of ornaments of the deceased from the accused or production of the same by the accused in the course of investigation, howsoever suspicious, cannot be conclusive of the question of the accused having committed the offence. As per Illustration (a) to Section 114 of the Evidence Act, 1872 though recovery of the ornaments can lead to presumption that the accused had committed robbery or received stolen property, unless there are circumstances to show that the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offence under Section 302 IPC. 11. The facts in Sanwat Khan [Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54 : 1956 Cri LJ 150] bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of PW 12 is to be discarded on the ground that such evidence is
72 vague (there is no mention of the date on which PW 12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16-9-1991) the last seen theory built up on the evidence of PW 5 and PW 7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that PW 5 and PW 7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12-9-1991 and that they were going away to some other place. Even if the evidence of PW 12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of PW 5 and PW 7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused. 13. In view of what has been found above, we do not see as to how the charge against the appellant- accused under Section 302 IPC can be held to be proved. The learned trial court as well as the High
73 Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the appellant- accused under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is upheld. As the appellant-accused, who is presently in custody, had already served the sentence awarded to him under Section 392 IPC, we direct that he be set at liberty forthwith.
X. CONCLUSION
For the reasons stated above, the point raised in these Criminal Appeals is answered partly in affirmative holding that Accused Nos.1 to 5 have made out a case to interfere with the impugned Judgment and order of conviction only in so far as convicting the accused Nos.1 to 5 for the offences punishable under Sections 302 and 201
74 r/w 34 of IPC, in exercise of the powers under the provisions of Section 374(2) of the Code of Criminal Procedure, in the facts and circumstances of the case. Accordingly, the impugned judgment and order of conviction is liable to be set aside only in so far as convicting the accused Nos.1 to 5 for the offences punishable under Sections 302 and 201 r/w 34 of IPC, instead they are liable to be convicted for the offence punishable under Section 392 of IPC. XI. RESULT
In view of the above, we pass the following: O R D E R
(i) The Criminal Appeals are allowed in part.
(ii) The impugned judgment and order of conviction and sentence convicting the Accused Nos.1 to 5 for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC and sentencing them to undergo imprisonment for life and to
75 pay fine of Rs.15,000/- each with default clause, for the offence punishable under Section 302 r/w Section 34 of IPC and to undergo Rigorous Imprisonment for a period of three years for the offence punishable under Section 201 r/w Section 34 of IPC, are hereby set aside.
(iii) The appellants - Accused Nos.1 to 5 are acquitted for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC.
(iv) The appellants - Accused Nos.1 to 5 are convicted for the offence punishable under Section 392 of IPC and they are sentenced to undergo Rigorous Imprisonment for a period of TEN YEARS and to pay fine of Rs.30,000/- (Rupees thirty thousand only) each. In default of payment of fine, they shall undergo further Simple Imprisonment for a period of three years.
(v) The period of sentence already undergone by appellants - Accused Nos.1 to 5 in pursuance of the impugned Judgment and order of conviction and sentence, shall be given set off as
76 contemplated under the provisions of Section 428 of the Code of Criminal Procedure.
(vi) The entire fine amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) shall be paid to PW.1 – Smt. Geetha w/o the deceased Anil Kambar.
Ordered accordingly.
Sd/-
JUDGE
Sd/- JUDGE
Gss/-