TaxTMI 
TaxTMI 
2022 (11) TMI 1466
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....king 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 punishable under Section 506-B read with Section 1....
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....tated 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 read with Section 149 of the IPC and to pay a f....
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....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 registered against unknown persons for offences punishable und....
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....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 prosecution as well as the defence side, the Trial Court had heard the argume....
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....vely. 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. PW-14 / Lakshminarayana also has spoken on the same lines as that of PW-13 / Ramesh. 23. P....
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....d 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 as regards seizure of nighty, nikker, auto, two choppers, Rs.15,000/- at the instance of Accused No.7 and a panch witness to th....
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....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 11.12.2012 she received 15 materials in the laboratory and examined the said materials and had given her report as per Exhibit P-182. 60. PW-54 / Manoj M. Huvale is t....
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....orm 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 01.08.2012 to 21.01.2013 and customer application form. Accordingly, he is said to have provided all the details as per Exhibit P-238. 81. PW-75 / Nagarajaiah is a panch witness to name boards and photographer who....
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.... 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 statement of Accused Nos.2 to 4 and seized Zen car at the instance of Accused No.4 and some cash. On 25.11.2013, he took Accused No.3 and seized a chopper produced by Accused No.3. At the instance of Accused No.2, PW-81 further s....
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.... 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 turned hostile. But the Trial Court has given more credentiality to the evidence of those witnesses and considered certain portions and had arrived at a conclusion that the prosecution has proved the guilt of the accused persons relating to th....
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.... 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, handle of dragger was found and seized in PF No.144/2012. The case of the prosecution is based on the following circumstances: * Eye witness * Seizure of mobile phones and SIM cards * Seizure of cash and blood stained cloths * Statement of ....
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....lt 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. He has stated in his evidence that he knew Accused No.8 / C. Govindaraju and Accused No.12 / Gowramma who was the Corporator in the particular ward and that he also heard the news of the death of his father Lingaraju being telecasted in many TV channels. But he has stated nothing in his evidence about Accused Nos.1, 2 and 3....
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....d 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 prosecution. 109. It is further contended that the learned Sessions Judge had committed a grave error in relying upon the evidence of PW-13 / Ramesh who was working as an in-charge Manager of the Bangalore City Co- operative Bank. Though he had stated that Accused No.8 / Govindaraju was one of the Directors of the Bank, he has not pro....
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....n, 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 deceased Lingaraju, has stated that he and others were running Power Looms at Bhakthamarkandaiah Layout and deceased Lingaraju was a quarrelsome man and many cases were pending against him and chances of somebody committing his murder, cannot be ruled out. It is contended that the Trial Court has committed a grave error in not relying on his evidence ....
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....2, 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 of chopper at the instance of Accused No.3, panch witness to the seizure at the instance of Accused No.2, panch witness to the seizure of three shirts at the instance of accused nos.1 to 3, panch witness to the seizure of Rs.1,25,000/- at the instance of Accused No.4 and panch witness to the seizure of two mobiles and Rs.5,000/- at the instance of Accused No.1....
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.... 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 eye-witnesses and also the place where the knife and knife cover was found in the place of occurrence. Hence, his evidence also does not help the case of the prosecution to prove the guilt of the accused. 128. It is further contended that the learned Sessions Judge has committed a grave error in relying upon the evidence of PW-52 / R. Suma who is a Taluk Executive Magi....
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.... 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. Hence, it is contended that the evidence of this witness does not disclose any incriminating evidence against these appellants and hence it is required to be discarded. 131. PW-55 / Uma Devi is said to be the sister of Accused No.1 who had stated that Accused No.1 was using her mobile. However, in her cross-examination, she has denied the same and has turned hostile. PW-56 / Partha Sarathy is a panch witness to ....
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....o 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 the seizure of mobiles belonging to Accused Nos.5, 9 and 12 has also not provided any incriminating evidence to convict the accused persons. PW-65 / D. Ramakrishna Rao being the Assistant Revenue Inspector who issued residential certification to accused No.9. But he has not given any evidence against the accused persons. PW-66 / Dhananjay, Assistant Revenue Inspector issued residential certificate in respect of Accused No.2 ....
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....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 that he has not studied any course relating to electronic records and also that he has not mentioned the location of the towers in the said 3 mobile CDRs. He has further admitted that though there is voice recording system in Vodafone Ltd., the I.O. had not collected the same. Hence, it is contended that the I.O. has not made any attempt to collect better evidence to prove the charges leveled against the accused persons, which is aga....
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....f, 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 to Victoria Hospital and after the postmortem, he had handed over the dead body to the brother of the deceased. However, his evidence is of no use to the case of the prosecution. 147. PW-78 / Eshwarappa had brought the postmortem report and cloths of the deceased from Victoria Hospital and had given it to the I.O and the same is not disputed. 148. PW-79 / Balappa Nasannavar is the Police Constable who brought the CD from T.V. channel office....
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....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 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 be....
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....t 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 and only thereafter were sent to FSL and therefore the chances of disintegration cannot be ruled out. Further he had no knowledge whether CCTV was present in Palace Lodge, Ramanagara. Further, in the voluntary statements of Accused Nos.1 to 5, there is no reference to the name of palace lodge, CCTV, etc. He has also admitted that CWs 56 to 59 were attesting witnesses to more than 3 to 4 mahazars and CWs 62 and 63 were attesting witnesses to more than five....
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....ive 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 prosecution. Hence, the evidence of PW-88 is in no way helpful to the case of the prosecution. 159. PW-89 / Srikanth was working as a Technical Head in TV9 Private Limited who had stated that about 6 to 7 years back, their channel had telecasted a program called "Yuddha Kanda". It is stated that there was sting operation conducted by their channel with regard to the murder of Lingaraju. However, in his cross-examination he has stated that he did not know when the master c....
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....e 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 have not supported the case of prosecution regarding test identification parade and it is only substantive evidence unless it is corroborated in their evidence before the Court. In the parade PWs.1 and 2 did not identify accused Nos.1 and 2. PW.1 identified only Accused Nos.3, 4 and 5 and PW.2 identified only Accused Nos.4 and 5. But PW.1 and PW.2 did not identify who are the assailants. The evidence of PW.52 is not sufficient under Section 9 of the Evidence Act, as the conducting of the test ident....
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....ecution 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. In support of his contentions, learned counsel has relied on the following decisions: (i) Budhsen and another vs. State of UP (AIR 1970 SC 1321) In this judgment the Hon'ble Apex Court has observed as under: "Facts which establish the identity of an accused person are relevant under Section 9. As a general rule, the substantive evidence of a witness is a statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its ve....
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....dence 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 so, the High Court has to review the evidence upon which the order of acquittal is founded. The High Court is to consider the views of the trial judge as to the credibility of the witnesses. The High Court is also to keep in view the presumption of innocence in favour of the accused and the right of the accused to the benefit of doubt. Finally, the High Court is to give reasons that the acquittal was not justified. (iv) Baij Nath Sah vs. State of Bihar (2010) 6 SCC 736 Section 164 - Applicability - prosecutrix giving statement only under Section....
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....used 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 no direct evidence regarding the charges. Further it is held whether circumstantial evidence is sufficient to hold the accused guilty of the offences punishable under Sections 148, 109, 150, 506(B), 302 read with Section 149 of the IPC. 168. Further, the Trial Court has erred in holding Accused No.12 / Gowramma who was the Corporator of BBMP Ward No.141 in the year 2010, guilty of the offences in view of the fact that on behalf of her, Accused No.8 / C. Govindaraju was attending all the works and was also using her mobile. The prosecution case is that mobile belonging to accused No.12 wa....
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....ingaraju 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 said Exhibit P220. Further, there is no whisper in respect of PCR No.65/2012 as per Exhibit P349 which was registered as against Accused No.8 as well. It is contended that there is no action taken against the said PCR No.65/2012 filed by the deceased against Accused No.8. In spite of the same, the Trial Court having convicted Accused No.8, is unsustainable in law. 172. Even the documents relating to Accused No.8 is absolutely not pertaining to the role of these accused and further, even at a cursory glance of Exhibit P223, 382, 387 relating to motive factor of the deceased to commit the murder, i....
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....ed 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 Lingaraju that on the morning of 20.11.2012, at about 6.45 a.m. at a point of time when Lingaraju was collecting water from a road-side tap for the purpose of cleaning the stair-case, PW-1 / Smt. Uma Devi, the wife of the deceased saw three persons who were in the age group of 30 to 35 years coming running from Vittal Nagar side and thereafter, assaulting her husband Lingaraju all over his body with the weapons which they were holding and that when she made an attempt to rescue her husband from their clutches, one among them chased her and she ran towards the flour mill and by the time she came back to the pla....
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....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 examined on the part of the prosecution have turned hostile to the case of the prosecution. 179. In order to establish the recovery of certain material objects including the weapons alleged to have been used by the assailants of the deceased under different panchanamas, the prosecution has examined the following witnesses as the one in whose presence the recoveries are said to have been made. PW.32 - Prasanna was examined in respect of spot and inquest panchanama marked as Exs.P2 and P.127. PW.33 - Deepak was examined in respect of clothes, cash and vehicle under Ex.P17. PW.35 - Manikantan was examined in respect....
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....he 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 be within his knowledge. PW.59 - Siddaraju is the owner of the car in which some of the accused are said to have gone to Hogenakal. PW.62 - Dilip Kumar was examined to speak of he having financed for the purchase of an autorickshaw. PW.63 - A.Vijay was examined to speak to certain financial transactions in relation to Maruti Zen Car. PW.68 - Smt.Chandramma was examined to speak to certain mobile calls. PW.82 - Narasaiah and PW.83 - Ramaiah are the employees of Palace Lodge who was examined to speak to some of the accused having stayed in the Lodge. PW.84 - Adinarayana is the Technician who removed hard disk from ....
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....e 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 to her the blood sample of the deceased. She is not in a position to state as to whether the blood-stains found the material objects are that of a male or a female, she has not assessed the characteristics of the blood-stains and she is not in a position to state as to whether the blood-stains that were found on the material objects examined by her were of the same day or of different dates. PW.45 - Dr.Kantha Raj was attached to Victoria Hospital, Bangalore and through him, the prosecution has brought on record in the case that he was verified the records maintained in the Hospital relating to the deceased Lingaraju h....
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....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 the deceased as instructed by the IO. PW.79 - Balappa Narasannanavar is the Head Constable who performed certain duties as instructed by the IO in the matter of bringing the compact disk from a television channel. PW.80 - T.Venkateshappa is the PSI who registered the crime, apprehended the accused and partial investigation was done by him. PW.81 - Shiva Mahadevaiah is the Police Inspector who conducted partial investigation of the case. PW.88 - Manjunath is the Police Inspector who is the investigating officer of the case. PW.90 - K. Tilak Chandra is the Deputy Superintendent of Police. These are all the witnesses who were ....
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.... 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 reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requ....
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....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." It was further observed in Para-158 to 160 as under: "158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra v. State of Bihar AIR at pp.806-807, SCR at p.582 to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: (AIR pp.806-07, para 9 ) "....
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....avour 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 that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.'' Applying the said principles to the facts of the present case, the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the accused only and none else. Reliance placed by learned advocate Mr. Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused. 189. In Shambu Nath Mehra vs. State of Ajmer, this court had aptly explained the scope of Section 106 of the Evidence Act in criminal tr....
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....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 Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed that: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....". (vii) T.Diwakara and others vs. State of Karnataka by its SPP (ILR 2006 KAR 4632) In this judgment, this Court has held that "the statement of PW.10 was recorded before the Magistrate. After the lodging of the complaint, PW.10 has turned hostile. But the trial Court....
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.... 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 the case beyond all reasonable doubt since none of the circumstances is incriminating towards the accused in spit of which the Trial Court has convicted the accused, which is bad in law. 192. Lastly it is contended that the Trial Court has gravely erred while recording the statement under Section 313 Cr.P.C. Though there were about 462 questions while were put, all the incriminating questions have been denied by the appellant / Accused No.12 and even in page 442 of the judgment it is observed that the Lokayuktha police had raided the house of Accused Nos.8 and 12 and seized gold ornaments and thereafter handed over the same to Accused No.12. Accused Nos.8 and 12 had hatched a criminal conspiracy with other persons and have hired Accused Nos.1 to 3 to murder Lingaraju. In order to hire supari killers, Accused No.12 had pledged her gold ornaments throug....
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....77(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 Sumithra, L. Krishnamurthy, Lokesh, Nagaraj have also been got marked at various exhibits. Several witnesses have turned hostile to the case of the prosecution, despite of which the Trial Court has given credentiality to the evidence of the witnesses and rendered a conviction judgment. Therefore, in these appeals, in requires to re-appreciate the evidence in respect of the accused / gravamen of the accusation made against them and similarly the complainant / the gravamen of narration of the complaint. PW-1 / Uma Devi had turned hostile to the entire statement made by her at Exhibit P164. If the evidence facilitated by the prosecution is not re-appreciated in these appeals respectively, certainly the accused would be the sufferer and it would result in a miscarriage of justice. On all these premise, learned Senior counsel for Accused Nos.8 and 12 seeks to se....
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....uring 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 reiterated the same when he was subjected to cross-examination by the Special Public Prosecutor after being treated hostile. PW-4, PW-5 and PW-6 were also subjected to examination on the part of the prosecution to prove the incident relating to the murder of the deceased Lingaraju. But they have turned hostile to the versions of the prosecution relating to their statements and they have categorically stated in their evidence that the accused are not the assailants. Insofar as the statements made by PW-1 and PW-2 under Section 164 Cr.P.C., the same cannot be treated as substantive evidence unless it is corroborated by the witnesses on the part of the prosecution to prove the guilt against the accused. PW-1 and PW-2 who are material witnesses and so also eye-witnesses, have not supported the case of the prosecution. 196. PW-80 / T. Venkateshappa, being a Police Inspe....
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....os.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 and not "may be" established - Accused "must be"**Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra1. The accused "must be" and not merely "may be" guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused. (ii) Ram Niwas vs. State of Haryana (2022 Livelaw (SC) 670) In this judgment, the Hon'ble Supreme Court at para 18 has held as under: "18. The prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. St....
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....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 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." 20. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyo....
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....d 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 must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court." (iv) Crl.P.No.100822/2016 - Ramachandra and others vs. The State of Karnataka In the aforesaid petition, this Court has held as under: "With aforesaid observations, this petition is disposed of. While resting with this matter, a direction is issued to the Home Secretary for issuing a circular to all the police stations. In the first place directing them to conduct the investigation strictly in accordance with law and not to deviate from the procedure. Secondly, in cases where investigations are taken up with reference to documents said to be forged are fake documents and the same are referred to private laboratories for verification which is not correct. Therefore, when it comes to referring the documents for scientific verification with reference to handwriting, si....
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....ed with other accused in the crime. Even material secured by the I.O. during the course of investigation did not facilitate evidence to prove the guilt of the accused. Plurality of witnesses cannot be a ground for rendering a conviction judgment. Unless there is cogent, corroborative, positive evidence to probabilise that these accused persons alone have committed the murder of the deceased Lingaraju by avocation as an RTI Activist, the conviction is bad in law. These are all the contentions made by the aforesaid learned counsel who emphatically seeks for intervention of the judgment of conviction rendered by the Trial Court. If not interfered, certainly the accused persons would be the sufferer. 202. Therefore, it is contended that in these appeals, it requires to analyse and closely scrutinize the evidence as regards the Exhibits P26 and P116 in respect of two affidavits filed by deceased Lingaraju prior to the alleged murder. His affidavit is notarized by an Advocate relating to complaint against Accused No.8 / Govindaraju as regards hatching criminal conspiracy at Palace Lodge at Ramanagara. The accused persons are said to have stayed in a dormitory. However, there is no evide....
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.... 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 voluntary statements are marked as Exs.P311 and P310 and so also, their mobiles were seized as per MO.35, 36 and 37. Accused No.8 - Govindaraju was arrested on 22.11.2012 and his voluntary statement was recorded as per Ex.P129. On the same day, Accused Nos.1 to 5 were arrested at Ramanagar bus stand and their mobiles were seized as per MOs.38, 39 and 40. Their voluntary statements were recorded as per Exs.P315, 314, 316 and 317. On 23.11.2012 Lokayukta conducted raid on the house of Accused Nos.8 and 12 as per Ex.P224. On 24.11.2012 recovery was made from accused No.7 and his voluntary statement was recorded as per Ex.P131 and auto bearing Regn.No.KA-05-AA-2742 and 2 choppers as per MOs.41 and 42 and cash of Rs.15,000/- was marked as MO.54. On 24.11.2012 recovery was made from Accused No.6 and his voluntary statement was recorded as per Ex.P132. Two wheeler bearing Regn.No.KA-01- ER-6249 and Cash of Rs.1,000/- as per MO.50 was marked. On 25.11.2012 recovery was made from accused No.3 and his voluntary statement was recorded as per Ex.P.313 and one chopper was reco....
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....ed No.8 committed the murder of her husband as per the prosecution case but pending cross examination the case was compromised. On 11.03.2015 PW.1 compromised the case before the trial Court in C.C.No.16879/2013. On 20.03.2015 the trial Court called for sting operation CD Ex.P357 from TV-9. On 07.07.2015 the trial Court passed an order regarding relevancy and admissibility. 204. In support of his arguments, learned Spl.PP has produced gazette notifications dated 26.03.2018, 11.04.2018, 04.09.2018 and 26.11.2019 issued by the Ministry of Electronics and Information Technology, New Delhi. He has also produced the following reliances in support of his arguments: (i) In respect of subverting trial / undermining trial / sting operation, the judgment reported in the case of R.K.Anand vs. Registrar, Delhi High Court 2009(8) SCC 106 is relied. In the said judgment important observations are made about sting operation, evidentiary value of microchips and their copies, duties of advocates and supervisionary powers of High Court. (ii) In the case of Aniruddha Bahal v. State (Delhi) 2010 (172) DLT 268 it is held in respect of Article 51A (b) Fundamental rights and duties - citizens of th....
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....position that the evidence in the present case has to be appreciated. (iv) Bhajju @ Karan Singh v. State of M.P. (2012 AIR (SC) (Cri) 748) Evidence Act, Section 154 - A person calling a witness - he can put any question to his witness which might be put in cross-examination by the adverse party with permission of Court - Section 154 of Evidence Act enables the court, in its discretion to give the such permission - the courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. Evidence Act, Section 154 - Hostile witness - Evidentiary value of evidence of hostile witness -Court will always have to take a very cautions decision while referring to the statements of such witnesses who turn hostile or go back from their earlier statements recorded, particularly, under Section 164 of Cr.P.C. - what value should be attached and how much reliance can be placed on such statement is a matter to be examined by the Courts with reference to the facts of a given case. Indian Penal Code, Section 302 - Evidence Act, Section 154 - Hostile witness - murder case - prosecution witness supported prosecution but turned hostile ....
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....crossexamination done either by the accused or by the prosecution, would not be of any advantage to the case of the prosecution. However, the accused may refer thereto. But the court will always have to take a very cautious decision while referring to the statements of such witnesses who turn hostile or go back from their earlier statements recorded, particularly, under Section 164 of the Cr.P.C. What value should be attached and how much reliance can be placed on such statement is a matter to be examined by the Courts with reference to the facts of a given case. (vi) In respect of suggestions and admission put on behalf of accused during cross examination, the following judgments are relied on: (A)Tarun Bora @ Alok Hazarika vs. State of Assam (2002 AIR (SC) 2926) Indian Penal Code - Section 365 - Victim kidnapped for supply of information to Army about on Terrorist Organisation (ULFA) - Conviction under Section 365 IPC upheld - Offence of kidnapping in any form impinge upon human rights and right to life enshrined in Article 21 of the Constitution - Such acts not only strike a terror in the mind of the people but have deleterious effects on the civilized socie....
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....B) Mallikarjun vs. State of Karnataka (SC) 2019 (5) RCR (Criminal) 1002 Section 302 - Murder - Eyewitness - while appreciating evidence of witness, approach must be to assess whether evidence of witness read as whole appears to be truthful - once impression is formed, it is necessary for court to evaluate evidence and alleged discrepancies and then, to find out whether it is against general tenor of prosecution case - if evidence of eye witness found to be credible and trustworthy minor discrepancies which do not affect core of prosecution case, cannot be made ground to doubt trustworthiness of the witness. Section 302 Murder - recovery - merely because panch witnesses turned hostile, recovery of weapon would not stand vitiated - evidence of IO can be relied upon to prove recovery even when panch witnesses turned hostile - PSI has clearly spoken about recovery of dagger at behest of accused and another dagger and handle of axe from scene of occurrence - his evidence cannot be discarded merely because panch witnesses have turned hostile. (C) Mahendran v. The State of Tamil Nadu (SC) 2019 AIR (SC) 1719 In this judgment, it is held that opinion of an expert witness cannot ....
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....bjectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act." Further, in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and others (2020)(7) SCC 1 at para 50 it is held as under: "We may hasten to add that Section 65B does....
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....ed by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine quo non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement." In respect of statements under Section 164 of Cr.P.C. the judgment of Hon'ble Supreme Court in the case of Ramesh Singh @ Photti vs. State of Andhra Pradesh (2004 AIR (SC) 4545) it is held that " Section 164 of IPC, Section 302 of IPC - Murder Case - investigating officer got recorded statements of some of the PWs under Section 164 of Cr.P.C. it is no ground to reject their statements - evidence of such witnesses has only to be considered with caution and nothing be....
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..... The prosecution materials as well as the evidence of witnesses reveals that the police had seized Rs.3 lakhs from Accused Nos.1, 4, 5, 6, 7, 9 and 10. PW-81 / Shivamalavaiah has recovered an amount of Rs.1,00,000/- from Accused No.5 on his disclosure statement given during investigation. Accused No.5 had stated that the amount of Rs.1 lakh which was recovered from Accused No.5 was given by Accused No.8 / C. Govindaraju for the service of supari killing, in order to eliminate the deceased Lingaraju who was an RTI Activist and an Editor of 'Mahaprachanda'. 209. It is revealed that Accused Nos.1 to 5 went in an autorickshaw bearing No.KA-05/AA-2742 of Accused No.7 by holding deadly weapons. Similarly, Accused Nos.6 and 10 had come in a Hero Honda vehicle bearing No.KA-01/ER-6249 and reached Bhakthamarkandeya Layout at around 6.45 a.m. Accused Nos.1, 2 and 3 are alleged to have assaulted Lingaraju and done him to death. During investigation, PW-81 being an I.O. in part had seized a Tata Sumo bearing No.KA-41 / 3600 and so also a Zen car bearing No.KA-04/MA-224 said to be used by Accused No.4. The said vehicles were seized through Accused Nos.6 and 7. These are all the circumstances ....
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....t Exhibit P2, Exhibit P178 and Exhibit P308 and so also Test Identification Parade conducted has been proved by the evidence of PW-1 / Uma Devi and PW-2 / Karthik and PW-52 by getting marked documents at Exhibits P74, P75 and P179 inclusive of photo identification through the evidence of PW1, PW-2, PW-57, PW-64 and PW-88 and relating to Exhibits P30, P74, P75 and P34 to P70 and Exhibit P170, Exhibit P194 and Exhibit P179. Insofar as the mobile conversations it has to be established by the prosecution through the evidence of PW-70 to PW-74, PW-54, PW-57, PW-64 and so also the exhibited documents at Exhibits P-135, 172, 173 to 177, Exhibit P194, P184-192, Exhibit P138 to 195, Exhibit P196 and 225 to 295 and such other evidence. The marriage of the daughter of Accused nos.8 and 12 was scheduled on 20.11.2012 at Palace Grounds, Bengaluru. However, it is relevant to refer to Section 32 of the Indian Evidence Act, 1872, which reads thus: "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. -Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving e....
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....tes to the existence of any relationship 25 [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised. (7) or in document relating to transaction mentioned in section 13, clause (a). -When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a). (8) or is made by several persons, and expresses feelings relevant to matter in question. -When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question." But there is no substance in the contention made by the learned Spl. PP as regards Exhibits P.26 and P.116 as dying declaration. 213. Whereas Accused No.8 / C. Govindaraju along with Accused Nos.4, 5, 7 and 11 went to the house of Lingaraju to invite to the marriage of his daughter. After extending the marriag....
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....an the complainant who lodged the complaint at Exhibit P1 based upon which criminal law was set into motion. But PW-1 / Uma Devi and PW-2 / Karthik are said to be eye-witnesses to the incident, as according to the theory of the prosecution. However, they have not supported the case of the prosecution and both of them have resiled from their earlier versions, that is FIR and Exhibit P1. Even PWs 1 and 2 have not supported the TIP conducted in their presence and even the mahazars conducted in their presence relating to the incident of murder of Lingaraju, an RTI Activist and the Editor of 'Mahaprachanda'. Both of them have given a go-by to the version of the case of the prosecution. 215. The Trial Court has referred to certain circumstances appearing on the part of the prosecution. The medical evidence disclosed antemortem injuries over the person of the deceased Lingaraju. Recovery of material objects is at the instance of the accused persons and so also the mobile conversations of the accused persons is also incriminating evidence. Further, accused persons were staying in the lodge and had hatched criminal conspiracy among themselves to execute the murder of Lingaraju and they had....
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....power looms with the Lokayuktha police and so also before the BBMP. Accordingly, PW-87 had drafted a complaint and handed it over to deceased Lingaraju. Deceased Lingaraju being an RTI Activist had filed the said complaint before the aforesaid authorities and enquiry was commenced by them. Being unhappy about the same, the power loom owners had approached Accused No.12 / Gowramma who was the then Corporator of Azad Nagar Ward, Chamarajapet in Bengaluru City. There is an allegation that Accused No.8 had called deceased Lingaraju and threatened him to withdraw the complaint filed against power loom owners. Sri. Boregowda who the owner of the Power Loom Association is said to have picked up a quarrel with deceased Lingaraju by going to the house of Lingaraju along with other power loom owners. 219. It is relevant to refer to Exhibit P-26, a notorised affidavit dated 18.06.2010 filed by deceased Lingaraju, an RTI Activist and the Editor of 'Mahaprachanda' which reveals that if Lingaraju did not withdraw the complaint lodged against power loom owners, he would be put into trouble by Accused No.8/ C. Govindaraju. Deceased Lingaraju had also filed another affidavit marked as Exhibit P.11....
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....e with one handle was seized and blood droplets fallen on the spot was also seized and the said articles were marked as MO-1 to MO-6. But PW-81 / Shivamalavaiah has been subjected to examination as regards the boundaries of the place of occurrence which is indicated in the spot mahazar. The I.O. has prepared the spot mahazar and also prepared the sketch in respect of the scene of crime as per Exhibit P.208 and as per Exhibits P3 to P16. But at a cursory glance of the contents of the mahazar as well as the sketch, there is no corroborative evidence facilitated by the prosecution to prove the guilt against the accused persons that the accused had hatched a criminal conspiracy and eliminated Lingaraju, an RTI Activist and the Editor of 'Mahaprachanda'. 223. PW-1 / Uma Devi who is none other than the author of the complaint at Exhibit P1 and so also wife of the deceased Lingaraju has stated in her evidence that at the time of committing the murder of her husband, herself and also her husband were residing at her mother's house situated at Bhaktamarkandeya Layout. She was residing there for about 20 years prior to the incident. But her husband was working as an employee in Canara....
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.... the deceased Lingaraju has stated in his evidence that he knew Accused No.8 / C. Govindaraju and also his wife Accused No.12 / Gowramma who are the relatives of his father deceased Lingaraju. His father Lingaraju was murdered about 3 years back. During the lifetime of his father, his father was running an auto finance business from 13 to 14 years. Himself and his father and his mother PW-1 / Uma Devi were residing in the house of his grandmother. But on 20.11.2012 in the morning at around 7 to 7.15 a.m. when he was sleeping in his house, at that time, he heard the noise of his mother PW-1. Therefore, he had come out from his house and saw that his father Lingaraju had sustained injuries and died near the public tap near their house. His father Lingaraju sustained injuries under his right eye, neck as well as stomach part. Injures were caused due to assault by weapons like chopper. He found that a knife had fallen in the scene of crime. Himself and his mother PW-1 / Uma Devi had informed the murder of his father Lingaraju to the police. Accordingly, police had visited the scene of crime and recorded their statements. He identified the photos of the dead body of his father Lingaraju....
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....garaju by means of deadly weapons, but they have not withstood the versions of their statements to prove the guilt of the accused that the accused have committed the murder of the deceased Lingaraju, an RTI Activist and the Editor of 'Mahaprachanda' newspaper. 229. At a cursory glance of the evidence of PW-70 and PW-75 to PW-81 inclusive of PW-90, it is seen that their evidence is contrary to the evidence of PW-1 and so also the evidence of PW-2 / Karthik insofar as the contents of Exhibit P1 / complaint and so also the contents of Exhibits P1 to P401 and so also MO-1 to MO-54. Though MO.1 to MO.54 were seized by the I.O. by drawing a mahazar in the presence of panch witnesses, but under Section 27 of the Indian Evidence Act, information received from the accused to the extent of facts stated by the accused and based on the voluntary statements of the accused, recovery has to be specifically stated according to the aforesaid provision under Section 27 of the Indian Evidence Act. But the prosecution even though had subjected to examination several witnesses such as PW-1 to PW-90 and even got marked several documents at Exhibits P.1 to P.401 inclusive of material objects at MO-1 to ....
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....he prosecution. Inclusive of that, her son PW-2 / Karthik has also given a go by to the version of his statement. Both PWs 1 and 2 have given a go-by to the versions of the contents at Exhibit P1 of the complaint and so also the substance in the FIR inclusive of their statements recorded under Section 164 of the Cr.P.C. Even PW-1 and PW-2 have not given evidence relating to identification parade conducted by PW-52 being the Taluk Executive Magistrate who was subjected to examination. Even the Photo Identification parade was conducted by her. Though the statements under Section 164 Cr.P.C. of PW-1 / Uma Devi and PW-2 / Karthik were recorded as per Exhibits P.19 and P.74, but both of them did not support the versions of the prosecution to their statements at Exhibits P.19 and P.73 relating to the murder of Lingaraju, an RTI Activist and the Editor of 'Mahaprachanda'. 231. The Trial Court has arrived at a conclusion and convicted Accused Nos.1 to 12 for offences reflected in the operative portion of the order relating to offences under the IPC, 1860. But it is settled position of law that when doubt arises in the evidence of the prosecution, benefit of doubt shall be extended t....
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....at Exhibit P324, voluntary statement of accused D. Loganath at Exhibit P331, Statement of Smt. Gowramma at Exhibit P.339. These are all voluntary statements which have been recorded by the I.O. during the course of investigation and based upon their voluntary statement, the mahazar has been conducted by the I.O. in the presence of panch witnesses and so also spot mahazar was drawn in the presence of PW-1 / Uma Devi. Even though voluntary statements have been recorded and investigation has been carried out by the I.O. relating to laying of the charge-sheet against the accused and drew the seizure mahazar in their presence and in the presence of panch witnesses and though evidence has been adduced by the prosecution by subjecting to examination several witnesses, we find no worthwhile evidence to connect the accused with the crime. But the Trial Court has erroneously arrived at conviction by taking into consideration the charge-sheet material, which is inadmissible in evidence unless there is credible evidence. But law is clear and also well-settled that in order to prove the case, the prosecution needs to adduce worthwhile evidence. However, in the instant case, the prosecution has ....
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....ccused had committed the murder of the deceased Lingaraju as narrated in the theory of the prosecution. 236. However, at a cursory glance of the evidence of the witnesses on the part of the prosecution and also in the totality of the circumstances of the case, we are of the opinion that the prosecution has failed to establish the guilt against the accused by facilitating positive, cogent and corroborative evidence to probabilise that the accused and accused alone have committed the murder of the deceased Lingaraju being an RTI Activist as narrated in the complaint made by PW-1 / Uma Devi who is none other than the wife of the deceased and also being eye-witnesses to the case of the prosecution. When the case of the prosecution in entirety is found to be doubtful and is full of inconsistencies and when doubt arises in criminal justice delivery system, benefit of doubt shall always accrue in favour of the accused persons alone. In the instant case, the prosecution has failed to establish the guilt of the accused persons by facilitating worthwhile evidence. Consequently, the accused persons, namely appellants, deserve to be acquitted. In terms of the aforesaid reasons and findings, w....