TaxTMI 
TaxTMI 
2022 (11) TMI 1466
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..../ appellant in the respective appeals, seeking to set aside the judgment of conviction rendered by the LVIII Addl. City Civil and Sessions Judge (CCH-59), Bengaluru City, in S.C.No.428/2013 dated 28.10.2020 and to thereby acquit the accused / appellant in the respective appeals of the offences leveled against them. Since all these appeals arising out of the same judgment in S.C.No.428/2013, they are heard together and are disposed of by this common judgment. 2. The appeal in Crl.A.No.118/2021 has been preferred by appellants / Accused Nos.1 to 3 namely, Rangaswamy @ Ranga / Accused No.1, R. Shankar / Accused No.2 and Raghavendra @ Raghu / Accused No.3, challenging the judgment of conviction dated 28.10.2020 and order of sentence dated 29.10.2020 rendered by the Trial Court in S.C.No.428/2013. By the said judgment, the Trial Court has convicted the present appellants / Accused Nos.1 to 3 for offences punishable under Sections 120-B, 143, 147, 148, 302 and read with Section 149 of the IPC. Apart from the same, Accused No.1 has been convicted for offences punishable under Section 150 read with Section 149 of the IPC. Further, Accused No.3 has been convicted also for offences punish....
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....or the aforesaid offences and to pay fine as stated in the operative portion of the judgment in S.C.No.428/2013 along with default clause. All the sentences of imprisonment were to run concurrently with a further direction that the entire fine amount was to be remitted to the State. 4. The appeal in Crl.A.No.54/2021 pertains to one C. Govindaraju / Accused No.8 challenging the judgment of conviction dated 28.10.2020 and order of sentence dated 29.10.2020 rendered by the Trial Court in S.C.No.428/2013. By the said judgment, the Trial Court has convicted the present appellant / Accused No.8 for offences punishable under Sections 120-B, 143, 147, 148, 150, 302 and 109 read with Section 149 of the IPC. He has been sentenced to undergo rigorous imprisonment for two years for the offences punishable under Section 120-B read with Section 149 IPC and to pay a fine of Rs.2,000/- along with default clause; further to undergo simple imprisonment for six months for the offence punishable under Section 143 read with Section 149 of the IPC and to pay a fine of Rs.2,000/- along with default clause; further to undergo simple imprisonment for one year for the offence punishable under Section 147....
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....earned counsel for appellant Nos.2 to 4 / Accused Nos.5, 6 and 7, Shri M Devaraja, learned counsel for appellant Nos.5 and 6 / Accused Nos.9 and 10 and Sri.Vishnu Murthy, learned counsel for appellant No.7 / Accused No.11. In respect of the appeal in Crl.A.No.118/2021, we have heard the arguments of the learned Senior Counsel Shri B.V. Acharya who had argued for Sri.Vishnumurthy, the counsel on record for appellant Nos.1 to 3 / Accused Nos.1 to 3. We have also heard the counter arguments addressed extensively by the learned Spl.PP Sri.Ashok N Naik for the respondent / State in these matters and perused the common judgment of conviction rendered by the Trial Court in S.C.No.428/2013 dated 28.10.2020 inclusive of the evidence of PW-1 to PW-90, Exhibits P1 to P401, Material Objects namely MO-1 to MO-54 inclusive of Exhibits C1 and C2 and Exhibits D1 and D2. 7. The factual matrix of these appeals are as under: It transpires from the case of the prosecution that as on 20.11.2012, a case in Cr.No.238/2012 was registered on the complaint filed by one Uma Devi / PW-1, before the Chamarajpet Police as per Exhibit P1. Based upon her complaint, the said case in Cr.No.238/2012 was ....
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....learned Spl. Public Prosecutor and so also the arguments advanced by the learned counsel for the accused and on finding a prima facie case against them, framed charges against the accused for the aforesaid offences. However, the accused persons did not plead guilty but claimed to be tried. Accordingly, plea of the accused were recorded separately. 10. Subsequent to framing of charges against the accused, the prosecution had let in evidence by subjecting to examination PW-1 to PW-90 and got marked several documents at Exhibits P1 to P401 and marked material objects namely MO-1 to MO-54. On the part of the defence side, it got marked Exhibits D1 and D2 and also got marked Exhibits C1 and C2. Subsequent to closure of the evidence on the part of the prosecution, the accused were subjected to examination as contemplated under Section 313 of the Cr.P.C. for enabling them to answer as regards the incriminating evidence appearing against them. But the accused had denied the truth of the evidence of the prosecution witnesses and they did not come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C. On closure of the entire evidence on the part of the prosecuti....
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....who had given their statements as per Exhibits P85 to 87 and 88 to 90 respectively. 16. PW-7 / Prakash had given his statement at Exhibit P92 as regards criminal conspiracy and he has stated that he knew Accused Nos.8 and 12. 17. PW-8 / Arjun being the son of the deceased and PW-1 / Uma Devi had given statement as per Exhibit P12 as regards motive factor. 18. PW-9 / Balakrishna had given statement as per Exhibit P94 as regards motive and seizure of mobile at the instance of Accused No.8 and had identified Accused Nos.8 and 12. 19. PW-10 / Pratap had given his statement as per Exhibit P95 relating to the place of conspiracy. 20. PW-11 / Chandre Gowda had given his statement as per Exhibit P96 and PW-12 / Chikkamadegowda had given his statement as per Exhibit P97 as regards motive factor. 21. PW-13 / Ramesh was working as an In-charge Manager of Bengaluru City Co-operative Bank. He had stated that Accused No.8 / Govindaraju was one of the Directors of the said bank. He has further stated that one Revanna and Hemanth had borrowed Rs.10,00,000/- gold loan each from the said bank. One Lakshminarayana had sanctioned the said loan after pledging 500 grams of gold. 22.....
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....nt against Lingaraju. 34. PW-26 / L. Gopal is said to have lodged a complaint before the BBMP against the deceased Lingaraju regarding encroachment of lake. 35. PW-27 / Bomma Linga and PW-28 / Ravi, both had stated that Accused Nos.1 to 4 had concealed their clothes near the dhaba. 36. PW-29 / Chand Pasha had stated in his evidence that appellants / Accused Nos.1 to 3 had purchased six T-shirts, 3 pants and one handkerchief from him. 37. PW-30 / Beluraiah being the driver of the Tata Sumo vehicle bearing No.KA-41/3600 and also a panch witness to the seizure of the said Tata sumo vehicle. 38. PW-31 / Syed Ali had stated that he had seen the bloodstained cloths of the appellants who had gone to Hoganaikal Falls along with other co-accused persons. 39. PW-32 / Prasanna is alleged to be the panch witness to the inquest mahazar, spot mahazar, seizure of knife cover, seizure of mobile at the instance of Accused Nos.6 and 7, seizure of another mobile at the instance of Accused Nos.4 and 5 and to the seizure of bloodstained mud and sample mud in the place of occurrence which are marked as Exhibits P2, P127 to P130 respectively. 40. PW-33 / M. Deepak had given statement....
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....8 / C.M. Sathish is a panch witness to the seizure of mobile at the instance of Accused No.12, which mahazar is marked as Exhibit P-106. 55. PW-49 / Shiva Kumar @ Kumar is a witness who has spoken in line with the evidence of PW-48. 56. PW-50 / K.R. Ashok is a panch witness to the seizure of marriage invitation to the daughter of Accused Nos.8 and 12 and also a panch witness to the photos of Accused Nos.8 and 9 and a panch witness for receiving mobile number from PW-52 / C. Ramaiah. 57. PW-51 / Venkata Malavaiah is a Junior Engineer of PWD Department who had prepared the spot sketch which is marked as Exhibit P-178. 58. PW-52 / R. Suma is the Taluk Executive Magistrate who has stated that as on 26.12.2012 she received information to conduct the TIP in Cr.No.238/2012 of Chamarajapet P.S. As per the said directions, she is said to have conducted TIP on 07.01.2013 in respect of Rangaswamy, Shankara, Raghavendra, Chandra, Shankara @ Gunda and Velu. Thereafter, PW-1 and PW-2 were secured and they are said to have identified three accused persons by name Raghavendra, Chandra and Shankara @ Gunda. 59. PW-53 / Malathi is the FSL Scientific Officer who had stated that as on 1....
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....has stated that he had carried the FIR to the Court on 20.11.2012. 77. PW-71 / K. Rajesh is the Nodal Officer of Idea Cellular Limited who has stated that he had given the CDR, customer application form and location details of the customers to Manoj N. Huvale, Police Inspector, CID as per his request. 78. PW-72 / S.N. Murthy is the Nodal Officer of Vodafone Company who had stated that as per the requisition given by Shankarpuram Police, he had provided the call details of mobile Nos.9742774249, 9986374834 and 9742867217 through e-mail, as per Exhibit P-240. 79. PW-73 / Stanley is the Nodal Officer of Bharti Airtel who had stated that as on 30.01.2013, the CID police had given requisition through e-mail to provide call details of mobile numbers namely 9008687866, 9632933599, 9738606022, 9972133896, 9980046187, 9591717159 and 9945850261 and customers' application forms. Accordingly, PW-73 is said to have provided all the details as per Exhibit P-248. 80. PW-74 / Rathnakar Nayak is a Nodal Officer of BSNL Company who has stated that as on 28.01.2013, Police Inspector, CID had given requisition letter to provide the call details of mobile no.9449815395 for the period 01.08.....
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....ded over the complaint to the Police Inspector and directed him to register the case. He had recorded statement of witnesses, drawn the inquest mahazar, seized the dragger cover at the place of occurrence and sent the dead body to Victoria Hospital. Further, he had taken photos on the spot, had prepared the sketch, recorded the statements of eye-witnesses, on the same day received the bloodstained clothes of the deceased, wife and his son Karthik and seized the same. He had arrested Accused Nos.6 and 7 and seized two mobiles from Accused No.7 and one mobile from Accused No.6. Further, he arrested Accused No.8 on 22.11.2012 and recorded the voluntary statement of Accused No.8. Further, he arrested Accused Nos.1 to 5, seized mobiles. Further, on 24.11.2012 on the basis of the voluntary statement of Accused No.7, he seized the auto-rickshaw and recovered Rs.7,000/- from the house of Accused No.7. Further, he recorded the voluntary statement of Accused No.6 and seized the two-wheeler Honda bearing No.KA-01/ER-6249. Further, PW-81 had recorded the voluntary statement of Accused Nos.1 to 8 and they had shown the bloodstained cloths. On 24.11.2012 he further recorded the voluntary stateme....
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....er 28 days from the date of the crime. Major portion of the investigation was over even prior to his arrival in Cr.No.238/2012. He had sent requisition to the Jurisdictional Magistrate to record the statements of PW-1 and PW-2 under Section 164 of the Cr.P.C. Further, on 27.12.2012 he had sent a requisition of the Medical Officer of Victoria Hospital to examine the weapons and give an opinion. On 29.12.2012, he wrote a letter to the Director of Truth Lab, Bengaluru to examine the hard disk said to have been seized at Palace Lodge, Ramanagara. He had collected the revenue documents in respect of Ranganatha Hotel to know the name of the owner. These are all the evidence let in by the prosecution to prove the guilt against the accused whereby the Trial Court had appreciated the evidence of those witnesses in respect of the role of each one of the accused and arrived at a conclusion that the prosecution has proved the guilt against the accused relating to the motive factor, conspiratorial meetings to do away with the life of deceased Lingappa who is none other than the husband of PW-1 / Uma Devi. Though several witnesses were subjected to examination, the prosecution witnesses have tur....
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....lsewhere. Therefore, her evidence has no legal sanctity or value under the relevant provisions of the Indian Evidence Act relating to appreciation of evidence to prove the guilt against the accused which is an important domain vested with the prosecution to prove the guilt of the accused as regards the charges framed against the accused persons by the Trial Court. 98. Learned counsel Sri Vishnumurthy for Accused Nos.1 to 3 has submitted synopsis and also taken contentions by referring to the evidence of each one of the witness and so also the role of accused. It is contended that the incident took place on 20.11.2012 at about 6.45 a.m. to 7 a.m. Thereafter, PW.81 - I.O visited the spot around 7.15 a.m. and the case was registered by PSI - PW.80 around 8.10 a.m. in Crime No.238/2012 on the basis of complaint at Ex.P1 lodged by PW.1 at the spot for offence under Section 302 r/w 34 of IPC against three unknown persons and Govindaraju as per Ex.P.300. The inquest was held 9.45 a.m to 12.15 p.m. as per Ex.P.12 by PW.81. The spot mahazar as per Ex.P2 was dawn on 20.11.2012 in the presence of PWs.1 and 32 but they have not supported the case of the prosecution. Near the dead body, hand....
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....y did not support the case of the prosecution. 103. It is further contended that there is no incriminating evidence appearing against these appellants / Accused Nos.1 to 3. But based upon the evidence facilitated by the prosecution and even though there was no cogent evidence rendered by the prosecution to prove the guilt against the accused, the Trial Court rendered a conviction judgment relating to these accused Nos.1, 2 and 3. The Trial Court has committed a grave error in observing that nothing is elicited in the cross-examination and there is no incriminating evidence appearing against these accused persons though they stood for cross-examination. Nothing but the precious time of the Court has been taken away by recording the examination-in-chief even though this witness has given a go-by to the statements given by her under Section 164 Cr.P.C and the complaint at Exhibit P1 given by her relating to the death of her husband Lingaraju. 104. PW-2 / Karthik who is the son of the deceased Lingaraju was also the son of PW-1 / Uma Devi wherein he is also an eye-witness to the incident and so also is a panch witness to the inquest mahazar held over the dead body at Exhibit P73.....
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....the occurrence, have denied the statements given by them as per Exhibits P85 to 87 and 88 to 90 and have turned hostile to the case of the prosecution. Hence, it is contended that their evidence does not support the case of the prosecution. 107. Further, PW-7 / Prakash has denied the statements made by him as per Exhibit P92 and hence his evidence is also not helpful to the case of the prosecution. PW-8 / Arjun is the son of deceased and PW-1. He has denied the statement made by him as per Exhibit P-12 and has turned hostile to the case of the prosecution. Further, PW-9 / Balakrishna who had given his statement as per Exhibit P94, has denied the same and has resiled from his statements and has not supported the case of the prosecution except identifying Accused Nos.8 and 12. 108. PW-10 / Pratap who was supposed to speak about the place of conspiracy has not stated anything about the same and has turned hostile to his statements. Hence, it is contended that his evidence is also of no use to the case of the prosecution. PW-11 / Chandre Gowda and PW-12 / Chikkamadegowda have also denied their statements made as regards motive factor and have turned hostile to the case of the pro....
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....re is no incriminating evidence brought on record to prove the charges leveled against the appellants. PW-21 / Nagaraj who had stated in his evidence that he knew Accused Nos.8 and 12, has admitted that he had not given any statement to the I.O. as per Exhibit P-112 and has turned hostile to his statements. 114. Further, PW-22 / N.K. Lakshman, Notary has stated that he knew Druvakumar, Advocate and though he had identified the signature of the deceased on the notarized Affidavit which is marked as Exhibit P26, however, there is no iota of evidence against the appellants. 115. Though PW-23 / Chennakeshava has stated that he knew Accused No.8 in view of the fact that he had undertaken catering work in respect of the marriage of the daughter of Accused No.8 and further that Accused No.8 attended the marriage of daughter from judicial custody, however, no incriminating evidence is found against the appellants in order to convict the accused persons. PW-24 / Shivakumar who had also worked jointly with PW-23 as a contractor of catering work, has also turned hostile and has not supported the case of the prosecution. 116. PW-25 / K. Boraiah who lodged the complaint against the dec....
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....stile. Hence, his evidence is also of no use to the case of the prosecution. 120. PW-33 / M. Deepak who had spoken about the seizure of nighty, nikker, auto, two choppers, Rs.15,000/- at the instance of Accused No.7 and panch witness to the seizure of motorcycle and Rs.1,000/- at the instance of Accused No.6 which were marked as Exhibits P17, 131 and 132, has also denied his statements and has turned hostile to the case of the prosecution. 121. PW-34 / Smt. Laxmi, mother of Accused No.3 who when subjected to examination had stated that accused No.3 gave her Rs.10,000/- as on 21.11.2012, has also turned hostile to her statement and has denied that she has given any statement to the I.O. 122. PW-35 / Manikantan, son of Accused No.9 who had stated that the mobile used by Accused No.9 actually belonged to him, has also turned around and has denied his statement. PW-36 / Uttham Kumar, a panch witness to the spot mahazar at Exhibit P2 and seizure of knife cover has also denied the same and has turned hostile to the case of the prosecution. PW-37 / Shiva Prasad, a panch witness to six mahazars namely seizure of Rs.1,000/- at the instance of Accused No.5, panch witness to seizure ....
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....Sathish though a panch witness to the seizure of mobile at the instance of Accused No.12 namely Exhibit P-106, he has turned hostile to the said seizure. PW-48 who has spoken on the same lines of PW-48 as well, has turned hostile to his statements. Hence, it is contended that the evidence of these witnesses is in no way helpful to prove the charges leveled against the appellants. PW-49 / Shiva Kumar @ Kumar who has spoken on the same lines as of PW-48 has also turned hostile to the case of the prosecution. Hence, it is contended that the evidence of these witnesses is in no way helpful to the case of the prosecution to prove the charges leveled against the appellants. 127. PW-50 K.R. Ashok, is a panch witness to the seizure of marriage invitation of the daughter of Accused Nos.8 and 12, panch witness to photos of Accused Nos.8 and 9, and panch witness for receiving the mobile number from PW-52 / C. Ramaiah. However, there is no incriminating evidence against the accused in order to convict them. PW-51 / Venkata Malavaiah is the Junior Engineer of the PWD Department who prepared the spot sketch which is marked as Exhibit P-178. However, he has not shown the places of the alleged ....
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.... checks shirts, white shirt. In her cross-examination, she has admitted that she has not given the blood group which is said to have been found on material objects. It is contended that since the other witnesses have not supported the case of the prosecution, there is no legal value attached to the evidence of the said witness PW-53. 130. PW-54 / Manoj M. Huvale is the Police Inspector who is the I.O. in part who is said to have collected the CDRs through e-mail in respect of Crime No.238/2012 of Chamarajpet P.S. It pertained to different companies. It is elicited from the crossexamination that the I.O. has given the mobile numbers of accused persons but he did not know whether the I.O. had recorded the voluntary statements of the appellants / accused. Further, it is stated that he had not enquired in whose name the mobiles stood. PW-54 has admitted that none of the mobiles stood in the name of these appellants / accused. Any document has not been produced as regards the owner of the mobile, the user of the mobile and place of tower is also not mentioned. PW-54 has also not obtained the external and internal flash memory cards and he also did not know the source of these CDRs. H....
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....aj is a panch witness to the seizure of mobile photos at Exhibit P-186 taken from the mobile of Ramaiah, the father of Accused No.2. In his cross-examination, PW-60 has stated he working in Drugs Control office and that the police used to summon him frequently to act as a panch witness in several cases and that he is a stock witness to the police. Hence, it is contended that his evidence also would be of no significance to prove the guilt of the accused. 136. PW-62 / Dilip Kumar has deposed to the effect that he had provided a loan of Rs.50,000/- to buy the autorickshaw bearing No.KA-05/AA-2742, but that he did not know who was the owner of the said vehicle and further that he had not seen any of the accused persons in Court prior to giving evidence. Thus, it is contended that his evidence would also not be helpful to prove the guilt of the accused. 137. PW-63 / N. Vijay, being the owner of the Zen car bearing No.KA-04/MA-0224 had given statement to the effect that Accused No.4 had taken the said car from him. However, he has denied the same in the crossexamination and has turned hostile to the case of the prosecution. Further, PW-64 / Ramesh N.R. who was the panch witness to....
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....is elicited that in the said CDR, the tower location is not mentioned and he had not mentioned the tower code number and has also not collected mobile voice recording. He has further stated that if the number is not used for 90 days, the said mobile number will be deactivated and allotted to another person. He has further stated that required permission to share the CDR details with the Police Inspector was not obtained. Hence, it is contended that the procedure followed by this witness is contrary to law and also to Section 65(B)(4) of the Indian Evidence Act and his evidence is required to be discarded. 141. The further contention is that the learned Sessions Judge had committed a grave error in relying upon the evidence of PW-72 / S.N. Murthy, the Nodal Officer of Vodafone Company. It is stated that on 22.01.2013, the Shankarapuram police had requested PW-72 through e-mail to provide call details of mobile nos.9742774249, 9986374834 and 9742867217 and customer application forms. Thus, PW-72 is said to have provided all the details through e-mail and also declaration certificate under Section 65(B) of the Indian Evidence Act. However, in his cross-examination, he has admitted ....
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....observe any foot prints on blood in the place of occurrence. However, in his cross-examination, he has admitted that when he went to the place of occurrence at 7.00 a.m., the police were already present there. Though as per the case of the prosecution the complaint was lodged at 8.00 a.m. on 20.11/2012, the circumstance that police were present even at 7.00 a.m. indicates that investigation had started before lodging of the complaint itself, which is contrary to Section 154 of the Cr.P.C. Hence, it is contended that the investigation having started even before registration of the complaint, the entire trial is vitiated. 145. PW-76 / Gopalakrishna is the Head Constable who has stated that as on 02.12.2012 he had arrested Jaheer and produced before the I.O. along with his report as per Exhibit P-296. However, in his cross-examination, he has admitted that the I.O. had not given requisition to arrest him in writing and I.O. had also not furnished the photograph of accused persons. Hence it is contended that procedure aspects have not been followed at the time of arrest of the accused. 146. PW-77 / Muniraju is the Head Constable who took the dead body from the place of occurrence....
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.... and none of the eye-witnesses had come to the place of occurrence to give any information. Further, that PW-80 had not collected photos to prove that there was a CCTV in front of the aforesaid lodge. Hence, it is contended that the oral evidence of this witness PW-80 creates grave suspicion regarding the genesis of the prosecution case. 150. PW-81 / Shivamalavaiah, Police Inspector had stated that on receiving the information of death, he visited the place at 7.15 a.m. wherein the police staff were there and on seeing the dead body, he had collected the complaint from PW-1 / Uma Devi. PW-81 had secured dog squad, fingerprint experts and handed over the complaint to the Police Inspector and directed him to register the case. He had recorded statement of witnesses, drawn the inquest mahazar, seized the dragger cover at the place of occurrence and sent the dead body to Victoria Hospital. Further, he had taken photos on the spot, had prepared the sketch, recorded the statements of eye-witnesses, on the same day received the bloodstained clothes of the deceased, wife and his son Karthik and seized the same. He had arrested Accused Nos.6 and 7 and seized two mobiles from Accused No.7....
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....tioned and even there is no video or photo to evidence the recovery of weapons. Further, there are no names of the accused indicated in the FIR and also no individual overt act has been attributed to any of the accused persons. He had also admitted in his crossexamination that three teams were formed to investigate the case and the police had got desperate to arrest the accused persons within 22.11.2012. He has also admitted that the news of the incident was telecasted in all the news channels and print media as on 20.11.2012 and 21.11.2012. He has further admitted that he had not made any investigation as regards the mobile details of MO-38, MO-39, MO-44 and MO-45 used by accused persons. He has also admitted that none of the accused persons were the RC owner of the vehicle KA-41-3600. He has also admitted that accused persons were produced in open court without mask wherein all public present would have seen them. Hence, there is no legal sanctity to the TIP conducted. Further, that the blood in the spot and on the weapons was not properly preserved and hence there were chances of disintegration. Further, the bloodstained cloths were also kept in the police station for 20 days an....
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....dentified the signatures of the deceased Lingaraju in an affidavit and also stated that there was a rivalry between deceased and Accused No.8. However, no evidence is forthcoming against the appellants / accused. 158. PW-88 / G.C. Manjunath, is the Police Inspector in CID Office and is an I.O. in part. He has stated that on 08.02.2013, PW-90 K. Tilak Chandra issued a memo to conduct photo identification parade of appellants and others and sent the photographs of five accused persons with a covering letter containing 30 photographs. In this regard, he had summoned PW-1/ Umadevi to identify photos. Accordingly, she identified the photographs of Raghavendra, R. Shankar (A-2), Rangaswamy (A-1), Shankar (A-5) and Chandra (A-4). PW-2 / Karthik also had identified the said persons. However, in her cross-examination, she has admitted that before TIP, the photographs of accused persons were published in newspapers and other electronic visual medias. Hence, it is contended that it is well settled legal position that prior to photo TIP if the witnesses have already seen the accused persons, there is no value to the photo TIP. Further, PW-1 and PW-2 have not supported the case of the prosec....
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....nd from where the mobiles were purchased and who were the holders, users and owners. He had not collected any application forms in respect of the CDRs which stood in the name of the appellants / accused. 162. It is further contended that PWs.1 and 2 have not supported their statement which was recorded under Section 164 of Cr.P.C. as per Exs.P19 and P30. They had stated that whatever told by the police to them as per the same they had given statement and PW.1 says that she do not know what are the questions asked by Magistrate and what answers she has given. The statement recorded is not substantive evidence unless it is corroborated by the witnesses during their evidence. The statements under Section 164 of Cr.P.C. of PWs.1 and 2 were recorded under the pressure of police. In this regard, reliance is placed upon the following judgments: (i) 1972 SCC Crl.493 Ram Kisan Singh vs. Harmit Kaur and another (ii) (2010) 6 SCC 736 Baijanath Sah vs. State of Bihar (iii) 1999 Crl.L.J. 1936 (Bombay High Court) Audumbar Digambar Jagdane Vs. State of Maharashtra 163. The test identification parade was conducted by PW.52 as per Ex.P20 and P75. PWs.1 and 2 h....
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....here is no motive factor against accused Nos.1 to 3 and 11 to commit the murder of deceased Lingaraju. Mere motive against Accused Nos.8 and 12 is not sufficient to establish that these accused Nos.1 to 3 and 11 had conspired with accused Nos.8 and 12 and in pursuance of that they committed the murder of the deceased. But there is no material placed by the prosecution to establish the conspiracy between these accused persons with accused No.8. It is pertinent to note that according to the case of prosecution accused No.11 accompanied accused Nos.4, 5 and 8 and gave the marriage invitation card of daughter of accused No.8 to deceased Lingaraju four to five days prior to the incident. Further, it is relevant to note that the investigation officer himself produced Ex.P.378 wherein it is mentioned that accused No.11 is a convicted person and he is in incarceration and prosecution had not established that accused No.11 was on bail during the said period. The investigating officer - PW.81 had filed an application before the Magistrate to issue body warrant against accused No.11 / Suresh @ Suri. Therefore, the conspiracy is not proved by the prosecution beyond all reasonable doubt. 166....
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....ustained." (ii) Iqbal and another vs. State of UP (2015) 6 SCC 623 Criminal trial - identification - test identification parade - identification of miscreants in TIP - evidentiary value of - conviction cannot be based solely on identification of accused in TIP - necessity of adducing reliable substantive evidence to prove offence beyond reasonable doubt - occurrence taking place in pitch darkness - relevance - case of dacoity with murder. It is held that evidence of identification in TIP is not substantive evidence and conviction cannot be based solely on identification of accused by witnesses in TIP but the prosecution has to adduce reliable substantive evidence connecting accused with crime to prove offence beyond reasonable doubt. (iii) Ram Kishan Singh vs. Harmit Kaur and another 1972 SCC (Cri) 493 In this judgment the Hon'ble Apex Court held as under: (i) A statement under Section 164 of Cr.P.C is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. (ii) The High Court as an appellate court can set aside an order of acquittal. In doing ....
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....l witnesses having turned around in the cross-examination. Therefore, these appeals require intervention. If not interfered, the accused persons would be the sufferers and it would result in a substantial miscarriage of justice. 167. In continuation of the arguments advanced by the learned Senior Counsel Shri B.V. Acharya for Accused Nos.1 to 3, learned Senior Counsel Shri C.V. Nagesh has addressed his arguments in respect of Accused No.8 / C. Govindaraju who is the appellant in Crl.A.No.54/2021 and in support of Accused No.12 / Gowramma who is the appellant in Crl.A.No.1068/2020. Accused No.8 and Accused No.12 are spouses who have been arraigned as accused relating to the murder of deceased Lingaraju. Learned Senior Counsel Shri C.V. Nagesh has contended that the Trial Court has gravely erred in convicting Accused Nos.8 and 12 inclusive of other accused relating to offences under Section 109, 302 read with Section 149 of the IPC. In the impugned judgment of conviction rendered by the Trial Court in paragraph 228 at page 223, it is observed that all the material witnesses have turned around and have given a go-by to the versions of their statements and it is held that there is n....
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....PW-1/Uma Devi is the only solitary eye-witness to the incident. This aspect is corroborated with Exhibit P127 inquest in Column Nos.3 and 4 as the person who had last seen the deceased alive. Further, in the entire contents of the complaint or in Exhibit P127, the name of the appellant / Accused No.8 has not been mentioned and this important aspect has been brushed aside by the Trial Court in convicting the accused. 171. It is further contended that the Trial Court has gravely erred in holding at Accused Nos.8 and 12 had a strong motive against deceased in view of the fact that the deceased Lingaraju had filed PCR No.65/2012 before the Hon'ble Lokayuktha Court and a case was registered at the instance of the deceased against Accused No.12 in Cr.No.82/2012 as per Exhibit P220. However, it is contended by the learned Senior counsel that Cr.No.82/2012 was not registered at the instance of the deceased Lingaraju but it was registered on a suo moto complaint by one Ravishankar, Inspector of Police, Lokayuktha. Further, the said case was stated before this Court in Crl.P.No.1076/2018 by order dated 10.07.2019. Further, the said Ravishankar as well has not been examined to prove the sa....
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....eceased will be admissible. However, in the instant case, there is a proximity of time to be considered namely Exhibit P26 dated 20.06.2010, Exhibit P27 dated 12.06.2012, Exhibit P28 dated 31.07.2012, Exhibit P29 dated 31.07.2012, Exhibit P116 dated 22.06.2010, Exhibit P285 dated 23.06.2012, Exhibit P391 dated 06.09.2010, Exhibit P349 dated 13.07.2012, Exhibit P220 dated 08.11.2010, Exhibit P223 dated 09.11.2012 and Exhibit P400 dated 09.11.2012. However, these documents even though have been got marked, but it does not attract Section 32(1) of the Indian Evidence Act. Exhibit P391 is a letter submitted by PW-90 to investigate as to who made the threatening call, which is in no way concerned with Accused Nos.8 and 12. This important aspect of the matter has been completely ignored by the Trial Court which has erroneously arrived at a conclusion that the prosecution has proved the guilt of the accused. 175. Learned Senior counsel Sri C.V.Nagesh for Accused Nos.8 and 12 in Crl.A.No.54/2021 and Crl.A.No.1068/2020 has also filed synopsis in support of his case. It is contended that on the complaint filed by PW-1 / Smt. Uma Devi who is none other than the wife of the deceased Lingara....
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....- (i) motive and conspiracy to commit the crime (ii) eye-testimony (iii) recovery of certain material objects (iv) some other circumstances that are pressed into service by the prosecution to lend credence to its case against the accused and (v) scientific, medical and electronic evidence. 177. With regard to motive and conspiracy to commit the crime, learned counsel for accused No.8 contended that to bring on record in the case that appellant / accused No.8 entered into a conspiracy with his other companion accused in the case to do away with the life of deceased Lingaraju, the prosecution the trial of the case examined the witnesses. PW.1 - Umadevi who is none other than the wife of deceased, PW.2 - Karthik being son of deceased, PW.5 - Lokesh who is the neighbour, PW.7 - Prakash, PW.8 - Arun who is the son of deceased, PW.9 - Balakrishna, PW.10 - Pratap, PW.11 - Chandregowda and PW.12 - Chikkamahadeva Gowda, their evidence has been treated hostile by the prosecution. 178. In respect of eye-testimony the prosecution during the trial of the case as eye-witnesses to the incident of assault on the person of the deceased Lingaraju, PW.1, PW.2, PW.4, PW.5 and PW.6 who were exami....
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....ined in respect of bank borrowings. PW.17 - Lokesh was examined to speak about he having lent money to the accused. PW.20 - Sumithra is the employee of the City Cooperative Bank who was examined with regard to money transaction. PW.21 - Nagaraj is an Advocate who was examined to speak to he having worked as an office assistant in the office of accused No.8. PW.23 - Channakeshwara is the caterer who service is said to have been taken as catering contractor in the marriage of the daughter of accused No.8. PW.24 - Shivakumar was examined to having joined hands with PW.23 in the catering work. PW.27 - Bommalinga is the employee in a Daba who was examined to speak to the presence of some of the accused in the Daba. PW.28 - Ravi is the employee in a Daba who was examined to speak to the presence of some of the accused in the Daba. PW.29 - Chand Pasha is the foot-path vendor who was examined to speak to some of the accused buying cloth from him. PW.30 - Beluraiah is the Car Driver was examined to speak to he having driven the car in which some of the accused had gone to Hoganekal. PW.31 - Syed Ali was examined to speak to some of the accused having gone to Hogenakal which fact is said to ....
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....stigating officer the chart said to contain the out-going calls made from mobile phone bearing No.9742774249, 9986374834, 9742867217. PW.73 - Stanley is the Nodal Officer of Bharti Airtel and in his evidence he did not say anything against the accused other than furnishing to the investigating officer the chart said to contain the out-going calls made from mobile phone bearing No.9008687866, 9632933599, 9738606022, 9972133896, 9980046187, 9591717159 and 9945850261. It is contended that the admissions given by these witnesses during the course of his cross-examination do not even remotely indicate that any calls were made by the appellant / accused No.8 to anyone at any point of time, let alone, to his other companion accused in the case. 182. It is the further contention of learned counsel for accused No.8 that the only witness who is examined by the prosecution from the Forensic Science Laboratory is Smt.Malathi as PW.53. This witness is examined to speak to the blood-stains said to have been found on certain material objects recovered/collected during the course of the investigation of the crime. In categorical terms this witness has stated that the investigator had not sent t....
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....urse of his cross-examination would belie the contentions of the prosecution that the deceased came to be assaulted by using the weapons said to have been recovered at the instance of the assailants of the deceased. Even otherwise, this may not much importance for the simple reason that none of the eye-witnesses to the incident of assault would speak against the accused who were before the Court as assailants of the deceased. 184. PW.65 - D.Ramakrishna Rao, PW.66 - Dhananjay and PW.67 - Smt.Uma are the Assistant Revenue Officers of BBMP who were examined on the part of the prosecution. Their testimony relate to they having given copies of certain documents as sought for by the investigating agency. 185. PW.75- Nagarajaiah is the Police constable who took certain photographs of the scene of offence. PW.76 - Gopala Krishna is the Head Constable who apprehended some of the accused in the case and produced them before the IO. PW.77 - Muni Raju B.R. is the Police Constable who kept a watch over the dead body of the deceased. PW.78 - Eshwarappa is the Police Constable who carried certain articles to FSL and to the Doctor who conducted the autopsy over the dead body of t....
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....r the pond and the evidence in regard to the incident which took place near the Ota of the Pir shows that the respondents had some motive for committing the crime. We may also accept that blood-stained shirt and dhoti were seized from the person of respondent 1 and dharias were seized from the houses of respondents 1 and 3. But these circumstances are in our opinion wholly insufficient for sustaining the charge of murder of which the respondents are accused." (iii) Anjan Kumar Sarma vs. State of Assam AIR 2017 SC 2617 In this judgment at para 20 and 21 it is held as under: 20. Mr. R. Venkataramani relied upon Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570 at p.582 to buttress his submission that the circumstance of last seen together coupled with lack of any satisfactory explanation by the accused is a very strong circumstance on the basis of which the accused can be convicted. It was held by this Court in the above judgment as follows:- "It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a rea....
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.... 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 where the observations were made : (SCC p.807, para 19) 19...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. (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 th....
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..... A false plea can at best be considered as an additional circumstances, if other circumstances point unfailingly to the guilt of the accused." The said principles have been restated in catena of decisions. In State of U.P. vs. Ashok Kumar Srivastava (1992) 2 SCC 86, it has been observed in para 9 that: "9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean t....
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....urt has consistently held in a long line of cases [See Hukam Singh v. State of Rajasthan AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890)] that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt. (vi) C. Chenga R....
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....e any allegations against Accused No.12. Even when deceased filed a complaint against Accused No.12, no such documents were produced and the deceased filed PCR No.65/2012 against Accused No.8. However, no action was taken and only it was a suo moto case registered by the Lokayuktha Police as per Exhibit P220. Deceased Lingaraju was not even a pancha to the seizure mahazar in the said case. Therefore, the question of enmity between the Accused No.12 and the deceased Lingaraju does not arise at all. Further, it cannot be expected that Accused No.8 and remaining accused were unknown to Accused No.12 and even that it cannot be assumed that there was any connecting incriminating circumstances established against Accused No.12. When the case stands on circumstantial evidence, it is essential to prove that the accused and accused alone are responsible for the act in view of the law laid down by the Hon'ble Apex Court in 2020 Crl.J. 173. Each circumstances is to be established to connect the accused to the incident and even a single missing chain would lead to the benefit of doubt going in favour of the accused. In the instant case, it is contended that the prosecution has failed to prove ....
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....heir statements. PW-1 / Uma Devi is the complainant at Exhibit P1. In her presence, Exhibit P2 / spot mahazar was drawn by the I.O. PW-2 / Karthik is the son of the deceased and even PW-8 / Arjun are material witnesses on the part of the prosecution have been subjected to examination, but they did not withstand the versions of their statements in respect of the versions made at Exhibit P1. Despite of which, the Trial Court has rendered a conviction judgment. PW-12 who has been subjected to examination and got marked portions of the statements at Exhibits P32(a) to P32(p). PW-2 / Karthik had given statement under Section 164 of the Cr.P.C. and when he was subjected to examination, he has given a go-by to the versions of his statements given to the I.O. Contradictory part of the statement has been marked at Exhibits P76, P76(a) to P76(e) and P77, P77(a) to P77(j). Further statements of one Renukaradhya and further statements of Karthik inclusive of Prakash K and declaratory part of their statements have been got marked at Exhibits P89 to 92 and 92(a) to 92(f). Part Statements of Arjun, Balakrishna, Prathap, Chandregowda and Chikkamadegowda inclusive of the declaratory statements of S....
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....e versions of the incident narrated in the complaint at Exhibit P1. PW-1 / Uma Devi and PW-2 / Karthik have given their statements under Section 164 of the Cr.P.C. which have been recorded by the Judicial Magistrate, but have disowned their statements relating to the incident narrated. PW-1 in her evidence has specifically stated that the relationship between her husband deceased Lingaraju and Accused No.8 / C. Govindaraju and Accused No.12 / Gowramma was cordial in nature. PW-1 has further stated that she did not scribe the FIR and as instructed by the police, she affixed her signature at the police station. Further, she has also stated that she did not know the contents of the mahazar and that she has also told that Accused are not the persons said to have assaulted her husband. Further, she did not identify any of the accused persons present before Court. During the course of crossexamination, nothing was elicited in identifying the accused though she was very much with the deceased when the assailants had assaulted her husband Lingaraju. PW-2 / Karthik who is none other than the son of the deceased Lingaraju has given his evidence that he did not identify the accused and reiter....
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....That apart, the prosecution has also not adduced any iota of evidence that Accused Nos.1 to 6 were present in Bengaluru or at the place of occurrence at the relevant date as on 20.11.2012. Further, though so many recoveries were made vide various PF numbers, the said PF numbers are in no way connected to the appellants. Viewed from any angle, it is contended that the prosecution did not adduce any evidence to connect accused Nos.4 to 7 in the case. The Trial Court has erroneously convicted the accused taking the materials from the charge-sheet, which is inadmissible in evidence. Law is well-settled that in order to prove the case, the prosecution needs to adduce evidence. However, the prosecution has failed to bring any iota of evidence to bring out any iota of evidence to prove the guilt of the accused. 200. Learned counsel Shri Satyanarayana S. Chalke for Accused Nos.5, 6 and 7 in support of his arguments has relied on the following decisions: (i) Chandrapal vs. State of Chattisgarh (2022 5 Supreme 404) In this judgment, the Hon'ble Supreme Court has held as under: Circumstantial evidence - The circumstances concerned "must or should be" established ....
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....e innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 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." (2) the facts so established should be consistent only with the hyp....
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....natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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 mus....
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....scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the identifications are held in police presence, the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of section 162 of the Code. (See Ramkishan Mithanlal Sharma vs. The State of Bombay) 11. The next important flaw is that while the pahchan patra of the TIP mentions that three lungis were presented, the related witness was shown only one lungi for identification as per the own statement of the witness Filim Sai (PW-3). Such infirmities would 2 (1955) 1 SCR 903 therefore, render the TIP unworthy of acceptance, for supporting the prosecution. 201. Learned counsel Shri Vishnumurthy for Accused No.11 / Suresh @ Suri contends that this accused being convicted, was in incarceration but this accused was arraigned as accused in the aforesaid judgment of conviction and faced trial. When this accused was in incarceration, it cannot be said that he participated with other accused in the crime. Even material secured by the I.O. during the course of investigation did not facilitate ....
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....rrespondence made by deceased to His Excellency Governor seeking permission to prosecute accused No.12. Complaint came to be filed before Lokayukta against accused No.8 in PCR No.65/2012 as per Ex.P349. Exs.P28 and 29 are the applications Form A under the RTI Act seeking information regarding action report against Accused Nos.8 and 12. Ex.P220 is the FIR dated 08.11.2012. On 09.11.2012 Lokayukta held raid / house search of accused Nos.8 and 12 as per Ex.P223. Accused Nos.8 and 12 availed loan of Rs.20 lakhs through accused No.12's brother and his son PW.15 from BCC bank as per Exs.P102 and 103. On 20.11.2012 at 6.45 deceased was done to death. On 20.11.2012 PW.1 lodged complaint Ex.P1 and consequently FIR came to be registered. On 21.11.2012 W.P.47342/2012 GM-RES (PIL) was registered and this High Court suo moto initiated proceedings in the matter of death of Lingaraju. Ex.P127 is the inquest mahazar conducted on 20.11.2012. Ex.P2 is the spot mahazar under which dagger, its handle and MO.3 to 6. Ex.P17 is the seizure mahazar of blood stained clothes of PWs.1 and 2 where MO.1 and 2 were marked. On 22.11.2012 at 7.30 a.m. Accused No.6 Bhavani and Accused No.7 were arrested and their ....
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.... and cash of Rs.5000/- MO.52. On 09.12.2012 accused No.9 as per his voluntary statement Ex.P331 lead and produced from his house MO.53 Rs.47,000/- and one Nokia mobile MO.48 with SIM. On 12.12.2012 accused No.12 was arrested at Tanjavur who was with her brother - PW.12 Krishnamurthy. On 13.12.2012 PW.12 Krishnamurthy produced MO.49 bearing SIM 9945850261 which was used by accused No.12. On 01.01.2013 the voluntary statement of PW.1 as per Ex.P19 and voluntary statement of PW.2 as per Ex.P73 were recorded. On 07.01.2013 test identification parade and on 08.02.2013 photo identification parade were conducted. On 12.02.2013 PW.54 who collected the call details submitted analysis report to the PW.90 who is the IO. On 06.04.2013 about the compromise in C.C.No.16879/2013 PW.1 who is the wife of deceased gave her evidence in the said case. On 08.04.2014 petition in W.P.No.17847/2014 was filed by PW.1 - Smt.Umadevi for removal of Spl.PP since she did not cooperated for compromise with the accused. On 06.05.2014 PW.1 gave her evidence in C.C.No.16879/2013 stating that accused No.8 committed the murder of her husband as per the prosecution case but pending cross examination the case was compr....
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.... guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidences proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated. (iv) Bhajju @ ....
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....bsp;b. Prithi v. State of Haryana (2010) 8 SCC 536 186 c. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 d. Ramkrushna v. State of Maharashtra (2007) 13 SCC 525 20. PW2 and PW3 were the persons who had met the deceased first after she was put on fire. They were not the eye-witnesses to the occurrence. It is an admitted case that they were the first persons to meet the deceased after she suffered the burn injuries and had taken her to the hospital. This was their consistent version when stated before the police and even before the court. Contrary to their statement made to the Investigating Agency, in the Court, they made a statement that the deceased had told them that she had caught fire by chimney and her burn injuries were accidental. This was totally contrary to their version given to the police where they had stated that she had told them that Bhajju had poured kerosene on her and put her on fire. To the extent that their earlier version is consistent with the story of the prosecution, it can safely be relied upon by the prosecution and court. The later part of their statement, in crossexamination done either by t....
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....by the prosecution or the defence. 70.2 In the instant case, some of the material witnesses i.e. B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. 70.3 Some omissions, improvements in the evidence of the PWs have been pointed out by the learned Counsel for the appellants, but we find them to be very trivial in nature. 71. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occ....
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....lapse in the identification parade conducted by the Magistrate - accused identified in the Court as well - no reason to disbelieve testimony of witnesses. (F) Mohan Lal and another vs. Ajit Singh and another (1978 AIR (SC) 1183) Section 313 of Cr.P.C., Evidence Act, 1872, Section 3 - Statement of accused - evidence on record disproving exculpatory part of the statement part, which accords with the evidence, permissible to accept and act upon. (viii) In respect of dying declaration - On the basis of Ex.P.26 affidavit dated 18.06.2010 to 19.11.2012 on which date PW.87 - Dhruva Kumar, advocate heard from deceased regarding "life threat" leads to the circumstances of transactions resulting in death as per Section 32(1) of Indian Evidence Act. The Hon'ble Supreme Court has addressed this issue in the case of Sudhakar vs. State of Maharashtra (2000 AIR (SC) 2602), Kans Raj vs. State of Punjab and others (2000 AIR (SC) 2324) (ix) In respect of 65B Certificate the reliance of Hon'ble Supreme Court in the case of Anvar P.V. vs. P.K.Basheer and others at para 24 it is held as under: " 24. The situation would have been different had the appellant a....
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....riminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC." (x) In respect of conspiracy, the case of K.R.Purushothaman vs. State of Kerala (2006(12) SCC 631 it is held as under: "To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Co....
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....to PW-90, Exhibits P1 to P401, Material Objects namely MO-1 to MO-54 inclusive of Exhibits C1 and C2 and Exhibits D1 and D2, it is relevant to state that Accused Nos.8 and 12 had hatched a criminal conspiracy along with the other accused persons and are said to have hired Accused Nos.1, 2 and 3 to eliminate deceased Lingaraju who was an RTI Activist and so also an Editor of "Mahaprachanda" patrika. 207. Accused Nos.1 to 3 are said to be supari killers and as such, in order to pay the said supari killers, Accused No.12 / Gowramma had pledged her gold ornaments through her brother PW-15 / Revanna and his son Hemanth at Bengaluru City Co-operative Bank, Avalahalli and are said to have drawn an amount of Rs.9,74,000/- each after deducting the share amount, appraiser charge and so also application fee. The said amount was handed over by Revanna to Accused Nos.8 and 12. Whereas Exhibits P21 to P24 reveals that Accused No.8 / C. Govindaraju and Accused No.12 / Gowramma's daughter's marriage was arranged at Palace Grounds, Bengaluru as on 26.11.2012. On 19.11.2012, loan was borrowed by PW15 and so also his son from the Bangalore City Cooperative Bank. Lokayuktha Police had conducted rai....
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....ccused No.4 and Accused No.11 as rowdysheeters. After committing the murder of Lingaraju, an RTI Activist and the Editor of 'Mahaprachanda', the accused persons are said to have stayed in Gopinatham Mistry Trial Camp. PW-19 / Soundar Raj has stated in his evidence that he was working in the said lodge and he has identified Accused No.3 who had stayed in the dormitory on 20.11.2012. After committing the murder of the deceased Lingaraju, accused persons are said to have travelled to Hogenaikal falls in Indica car and Tata Sumo car and stayed in the said lodge. But there is no worthwhile evidence on the part of the prosecution as contended by the learned counsel for the accused. 212. The prosecution has given more credentiality to the motive factor and also dying declaration termed as an affidavit of Exhibit P-26 and Exhibit P-116. The contents of the affidavit reveals that prior to the death of Lingaraju, his life was under threat. In order to prove the motive factor and dying declaration, the prosecution has relied on the evidence of PW-22, PW-69 and PW-87 and has banked upon the evidence of those witnesses inclusive of the materials got marked at Exhibits P26, P116, P39, P27, P2....
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.... duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. (3) or against interest of maker. -When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. (4) or gives opinion as to public right or custom, or matters of general interest. -When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5) or relates to existence of relationship. - When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons as to whose relationship 25 [by blood, marriage or adoption] the person making th....
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....an autorickshaw bearing No.KA-05/AA-2742 of Accused No.4 by holding deadly weapons and Accused Nos.6 and 10 came in a Honda vehicle bearing No.KA-01/ER-6249 and reached Bhakthamarkandeya Layout at around 6.45 a.m. Near a public tap, deceased Lingaraju was seen collecting water from a public tap. Accused Nos.1, 2 and 3 are said to have assaulted him with means of chopper and dagger and caused his death on the spot. The wife of Lingaraju namely Smt. Uma Devi / PW-1 and their son Karthik / PW-2 had made efforts to save Lingaraju from their clutches. But Accused No.2 is said to have shown a chopper and caused life threat to them. These are the evidence which have been considered by the Trial Court to render a conviction judgment. But there is no worthwhile evidence let in by the prosecution to prove the guilt against Accused Nos.1, 2 and 3 inclusive of Accused Nos.8 and 12 and so also Accused Nos.4 to 7 and 9 to 11. Whereas PW-1 and PW-2 are the star witnesses but they have given a go-by to the version of the complaint at Exhibit P1 and their statements as recorded under Section 164 of the Cr.P.C. which are marked as Exhibits P-19 and P-73. 214. Learned Senior Counsel Shri B.V. A....
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....d 12 as on 09.11.2012. Therefore, it is stated that vengeance developed in between Accused Nos.8 & 12 and deceased Lingaraju. Therefore, motive factor has been assigned to prove the enmity between the deceased and Accused No.8. It is also revealed that in the year 2011-12, deceased Lingaraju and defeated candidates of BBMP election had gone to PW-87 / Druvakumar and requested him to draft a complaint in view of the fact that Accused Nos.8 and 12 had submitted a false affidavit before the Election Commission at the time of filing nomination to Corporation Election. Accordingly, PW-87 had drafted a complaint and had given it to deceased Lingaraju, which was filed before the Lokayuktha and the BBMP. For that reason also enmity developed between deceased Lingaraju and Accused No.8. 217. PW-26 in his evidence has stated that the deceased Lingaraju, an RTI Activist and the Editor of 'Mahaprachanda' had lodged a complaint against him before the BBMP regarding encroachment of lake and he had also lodged a complaint against power loom owners. In this regard, Accused No.8 / C. Govindaraju being a relative of Lingaraju, had tried to pacify the quarrel between the power loom owners and Ling....
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....d in the affidavits. Unless there are some specific materials in terms of statement, that is a dying declaration made by the deceased Lingaraju when he was about to die, it cannot be termed as a dying declaration. In the instant case, Exhibits P.26 and P.116 which are notorized affidavits have been filed by deceased Lingaraju. Therefore, it cannot be said that it is a dying declaration and consequently, the contention made by the learned Spl. PP Shri Ashok N. Naik in this regard, does not hold any substance. 222. The prosecution has got marked Exhibits P.387, P.382, P.26, P.116, P.385, P.27, P.349, P.28, P.29, P.22 and Exhibit P.220, P.23 and Exhibit P.391 are the exhibits that were got marked on the part of the prosecution relating to motive factor in order to eliminate deceased Lingaraju. But at a cursory glance of the evidence of PW-22, PW-26, PW-69 and PW-87 in the examination-in-chief and also cross-examination, it is seen that they do not corroborate with any other independent evidence of PW-1 / Uma Devi, or PW-2 / Karthik or with PW-8 / Arjun. Though these witnesses have been subjected to examination on the part of the prosecution, they did not absolutely support their ca....
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....id to have ran away from the place and that she had shouted asking Karthik to come early. These are the evidence on the part of the prosecution. PW-1 has been subjected to examination thoroughly relating to Exhibit P1 of the complaint but she did not support the case of the prosecution. She has given a go-by to the version of her complaint at Exhibit P1 inclusive of the contents of the mahazar at Exhibit P2. This mahazar was conducted in the presence of PW-1 / Uma Devi. She has identified the spot and the dead body of her husband marked as Exhibit P3 and Exhibit P16. 224. PW-1 / Uma Devi and her son PW-2 / Karthik had given a statement as contemplated under Section 164 of the Cr.P.C., which is marked as Exhibit P19 and also statement of her son Karthik and so also got marked by recording statement under Section 164 Cr.P.C. PW-1 / Uma Devi and her son PW-2 / Karthik did not support the case of the prosecution as regards the contents of their statements made under Section 164 of the Cr.P.C. PW-1 / Uma Devi was summoned to Parappana Agrahara Jail whereby she had identified the persons being arraigned as accused. Photos of the accused persons were marked at Exhibits P35 to P38....
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.... the same is marked as Ex.P.75, the signature of Umadevi is marked as Ex.P.75(b). Further, PW-52 / Taluk Executive Magistrate had called another witness namely PW-2 / Karthik for identification of accused persons. After the said Karthik identified accused persons, she marked the said document as Exhibit P74 and obtained his signature at Exhibit P-74(a). Though the said Test Identification Parade was conducted by PW-52 and PW-1 / Uma Devi and PW-2 / Karthik had identified the accused persons, however, both of them have not withstood their statements given before the Investigating Officer and even as regards Exhibits P.74 and P.75 relating to identification of the accused persons by them. 227. At a cursory glance of the evidence of PW-1, PW-2, PW-52, PW-57, PW-64 and PW-88 in respect of identifying the accused persons who are alleged to have involved in committing the murder of the deceased, it is seen that their evidence does not find corroborated with the independent evidence or even with the evidence of PW-1 / Uma Devi, the author of the complaint at Exhibit P1 or even with the evidence of PW-2 / Karthik, the son of deceased Lingaraju. 228. PW-1 / Uma Devi and PW-2 / K....
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.... at Palace Grounds, Bengaluru. Four to five days prior to the date of marriage of their daughter, Accused No.8 had gone to the house of deceased Lingaraju along with Accused Nos.4, 5, 7 and 11 to extend the marriage invitation of their daughter. Accused No.8 / C. Govindaraju and deceased Lingaraju, RTI Activist were relatives and were acquainted with each other prior to the incident. Further, Accused Nos.8 and 12 had been to the house of Lingaraju to extend the marriage invitation card of their daughter. It further indicates that Lingaraju and Accused No.8 were in talking terms with each other, which is also one of the circumstantial evidence. But as regards the motive factor to indicate that there was an animosity developed between them and conspiratorial meetings were held among the persons arraigned as accused to eliminate the deceased Lingaraju by engaging supari killers, there is no evidence forthcoming on the part of the prosecution to prove the guilt against the accused. There is no cogent, corroborative and positive evidence relating to the said aspect on the part of the prosecution. 230. Based upon the complaint at Exhibit P1 filed by PW-1, the case in Cr.No.238/2012 ca....
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....at the scene of crime, but they have not supported the case of the prosecution to any extent and the same is revealed in their evidence itself and in the evidence relating to the Test Identification Parade conducted by PW-52 / Taluk Executive Magistrate. Even at a cursory glance of the entire evidence on the part of the prosecution, it indicates that the prosecution did not facilitate worthwhile evidence to convict the accused for the alleged offences. Viewed from any angle, the prosecution though had adduced evidence by subjecting to examination in all PWs 1 to 90 and several documents have been got marked inclusive of the material objects and so also had recorded voluntary statements of the accused and even disclosure statements of the accused, it is on the statement of Velu at Exhibit 310, Voluntary statement of the accused Umashankar @ Bhavani at Exhibit P311, voluntary statement of the accused Raghavendra @ Raghu marked at Exhibit P313, and further voluntary statement of the aforesaid accused marked at Exhibit P313(a), voluntary statement of the accused R. Shankar at Exhibit P314, further voluntary statement of the accused Raghavendra @ Raghu at Exhibit P314(a), voluntary stat....
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....that secondary evidence being inadmissible in law has been completely ignored by the Trial Court to arrive at an erroneous conclusion by rendering conviction against accused persons. 234. Though the prosecution has subjected to examination several witnesses such as PW-1 to PW-90 inclusive of official witnesses, but several witnesses have given a go-by to the versions of their statements and they have been examined as PW-1, 2, 4 to 12, 15 to 17, 21, 22, 28 to 44, 47 to 49, 55, 56, 59, 62, 63, 68, 82, 83, 85 and 86. Whereas, at a cursory glance of the evidence of these witnesses, none of the independent witnesses have supported the case of the prosecution to incriminate any circumstances against the appellants / accused. In spite of that, the Trial Court has erroneously arrived at a conclusion to convict the appellants / accused for offences punishable under Section 109 read with Section 149 and Section 302 read with Section 149 of the IPC, 1860 and so also for other offences for which charges were leveled against them. 235. Out of ninety witnesses even though 44 witnesses have given their evidence on the part of prosecution, but all of them are official witnesses and non....