Karnataka High Court

Ramesh S/O Bairuba Pawar vs The State Of Karnataka on 1 June, 2022

Bench: S.Sunil Dutt Yadav, J.M.Khazi

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

        DATED THIS THE 1ST DAY OF JUNE, 2022

                         PRESENT

   THE HON'BLE MR.JUSTICE S.SUNIL DUTT YADAV

                           AND

         THE HON'BLE MS.JUSTICE J.M.KHAZI

         CRIMINAL APPEAL NO.100108/2018


  BETWEEN

  RAMESH
  S/O BAIRUBA PAWAR
  AGE: 25 YEARS,
  R/O: KILLA ONI,
  R/O BAGALKOT,
  TQ & DIST: BAGALKOT
                                              ...APPLLANT
  (BY SRI. GOURISHANKAR H. MOT, ADVOCATE)

  AND

  THE STATE OF KARNATAKA,
  BY ITS CIRCLE POLICE INSPECTOR
  BAGALKOT TOWN POLICE STATION,
  NOW REPRESENTED BY
  STATE PUBLIC PROSECUTOR,
  HIGH COURT OF KARNATAKA,
  DHARWAD BENCH,
  DHARWAD.
                                            ...RESPONDENT
  (BY SRI. V.M.BANAKAR, ADDL.SPP)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
  OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
  ORDER OF CONVICTION DATED 07.03.2018 PASSED BY THE
  LEARNED II ADDL. DISTRICT AND SESSIONS JUDGE,
                                2


BAGALKOT IN S.C. NO.54/2009 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 147, 148, 400, 120(B), 396,
302 & 201 OF IPC R/W SEC 149 IPC RESPECTIVELY AND
ACQUIT THE APPELLANT / ACCUSED NO.6 FOR CHARGES
LEVELLED AGAINST HIM IN THE INTEREST OF JUSTICE.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 04.02.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:

                         JUDGMENT

Being aggrieved by his conviction and sentence for

the offences punishable under Sections 143, 147, 148,

400, 120B, 396, 302, 201 read with Section 149 of the

Indian Penal Code, 1860 (hereinafter referred to as "IPC"

for short), appellant who is arraigned as accused No.6 has

filed this appeal under Section 374(2) of Code of Criminal

Procedure, 1973 (hereinafter referred to as "CrPC" for

short).

2. For the sake of convenience the parties are

referred to by their rank before the trial Court.. It is the

case of the prosecution that accused Nos.1 to 9 are

habitually involved in robbery and for the said purpose

formed into an unlawful assembly and were staying in

house No.121/B of Kaulpet as tenants and entered into

criminal conspiracy to commit robbery and murder. In

furtherance of the said conspiracy, on 06.02.2008 at about

9.00 p.m. all the accused persons went to the house of

deceased Lakshminarayana @ Sathyanarayana Rathi

situated at No.158(A), Bagalkot. While accused Nos.1, 4

and 8 were waiting outside the house keeping a vigil,

accused No.6 made deceased Lakshminarayana @

Sathyanarayana open the door by saying that he is having

a courier. When deceased Lakshminarayana @

Sathyanarayana opened the door, accused Nos.2, 3, 5 to 7

and 9 entered the house and forced deceased

Lakshminarayana @ Sathyanarayana and his wife

deceased Leelavathi to hand over cash and gold. When

they did not agree, they tied their hands with rope and

covered their mouth with salophin tape and using the rope

which was wounded around two bicycles which accused

had taken with them, they strangled both

Lakshminarayana @ Sathyanarayana and Leelavathi. They

robbed a sum of Rs.23,000/-, gold ornaments, silver

articles including the gold ornaments, which are on the

person of the deceased, totally worth Rs.62,090/-. In order

to destroy the evidence, accused No.5 poured a pot of

water on the deceased and after locking the house all the

accused persons left the house and thereby accused Nos.1

to 9 have committed the offence punishable under

Sections 143, 147, 148, 400, 120B, 396, 302, 201 read

with Section 149 of IPC.

3. During the pendency of the case accused No.5

and 9 have died and as such, the case against them is

abated (as per order sheet dated 17.09.2009).

4. Charge is framed against accused Nos.1 to 4, 6

to 8 for the offences punishable under Sections 143, 147,

148, 400, 120B, 396, 302, 201 read with Section 149 of

IPC. They have pleaded not guilty and claimed trial.

5. In support of the prosecution case, 21

witnesses are examined as PWs.1 to 21, Exs.P1 to 78 and

MOs.1 to 40 are marked.

6. During the course of their statement under

Section 313 of Cr.P.C., accused Nos.1 to 4, 6 to 8 have

denied the incriminating evidence. They have not chosen

to lead defence evidence. However, they have got marked

portion of the statement of PW.2 as Ex.D1 to D3 and PW-

19 as Ex.D4.

7. Vide the impugned Judgment and order the

learned trial Judge was pleased to acquit accused Nos.2 to

4, 7 and 8.

8. However, accused Nos.1 and 6 are convicted

for the offences under Sections 143, 147, 148, 400, 396,

302, 201 read with Section 149 of IPC.

      9.      Accused      No.1       has     not    challenged     his

conviction.

10. During the course of arguments, the learned

counsel representing accused No.6 has argued that

accused No.6 is innocent person and he has not committed

any offence as alleged by the prosecution. The impugned

order of conviction and sentence is against the law, well

established procedure, facts and probabilities of the case.

The trial Court has erred in not framing proper charges

and the charge framed against accused No.6 are not

sustainable in the eye of law.

11. The learned counsel representing accused No.6

would further submit that learned trial Judge has failed to

analyze the evidence in a legal manner, which is full of

contradictions, omissions and it is unreliable and artificial.

Perusal of the evidence indicates that the facts does not

attract any of the ingredients of the alleged offence. The

trial Court has erred in over looking the major

discrepancies.

12. He would further submit that there is no direct

evidence to link accused No.6 to the alleged incident. None

of the witnesses have deposed regarding his identity. In

the absence of Test Identification Parade, the prosecution

has failed to prove the allegations against accused No.6.

The circumstantial evidence sought to be proved is not

supported by corroborative evidence. The chain of

circumstances are not complete to pin point the

involvement of accused No.6. During initial investigation,

doubt was expressed against the complainant.

Investigation is not conducted on this aspect. The recovery

at the instance of accused persons, including accused No.6

is not proved beyond reasonable doubt. The 313 statement

is not recorded properly and as such accused No.6 did not

have the opportunity to reply to it and prays to allow the

appeal.

13. In support of arguments on behalf of the

accused Nos.2 and 5 the learned counsel have relied upon

the following decisions:

(i) LAWS(SC) 1993 102 Prem Vs State of Maharashtra (Prem's case)

(ii) LAWS(SC) 2004 11 49 Munshi Singh Gautam Vs State of Madhya Pradesh (Munshi Singh's case)

(iii) LAWS(SC) 2008 4 102 Raj Kumar @ Raju Vs State of Uttaranchal (Raj Kumar's case)

(iv) LAWS(SC) 2019 2 56 Mala Singh And Others Vs State of Haryana (Mala Singh's case)

(v) Crl.A.No.100116 of 2019 c/w Crl.A.No.100103 of 2019 & Crl.R.C.No.100001 of 2019 Rebanna & Another Vs State of Karnataka (Rebanna's case)

(vi) Crl.A.No.1903/2019 Nagendra Sah Vs The State of Bihar (Nagendra Sah's case)

(vii) 1991 (O) MPLJ 878 Sakariya S/O Mithoo Vs State of Madhya Pradesh On 16 March, 1989 (Sakariya's case)

(viii) Crl.A.No.937 of 2005 State of Rajasthan Vs Talevar & Anr.

(Talevar's case)

(ix) (2008) 11 SCC 709 Raj Kumar Alias Raju Vs State of Uttarkhand (Rajukumar @ Raju's case)

(x) (2017) 11 SCC 160:(2017) 4 SCC (Cri) 237 Raj Kumar Alias Raju Vs State (Nct of Delhi) (NCT of Delhi's case)

14. On the other hand, the learned Additional

State Public Prosecutor supported the impugned Judgment

and order of conviction. He further submits that having

regard to the nature of the offences alleged, the

involvement of accused persons is proved through

recovery of the material objects. Based on the oral and

documentary evidence on record, the trial Court has rightly

convicted accused No.1 and 6. No justifiable grounds are

made out to interfere with the impugned Judgment, order

of conviction and sentence and prays to dismiss the

appeal.

15. In support of his arguments, the learned State

Public Prosecutor has relied upon the following decisions:

(i) (2001) 6 SCC 296 Shri Bhagwan Vs State of Rajasthan (Shri Bhagwan's case)

(ii) (1973) 1 SCC 202 Saktu & Another Vs State of Uttar Pradesh (Saktu's case)

(iii) (1998) 3 SCC 625 Ronny Alias Ronald James Alwaris & others Vs State of Maharashtra (Ronny's case)

16. We have heard elaborate arguments of both

sides and perused the record.

17. It is pertinent to note that the deceased couple

were issueless. Their residence was in the back portion of

the complex where deceased Lakshminarayana @

Sathyanarayana Rathi was running a grocery shop. In

respect of the incident in which they died, complaint is

lodged on 08.02.2008 by Dwarakadas Kishore Rathi,

nephew of deceased Lakshminarayana @ Sathyanarayana

Rathi. The complaint averments, the evidence of PW-1

Dwarakadas Kishore Rathi, PW-2 Govardhandas Buthada

PW-11 Sachin Rathi and PW-12 Praveen Sodani reveal that

on 05.02.2008, at 4.00 p.m. complainant and his family

members went to Thirupathi via Sholapur and on

07.02.2008 at 5.00 p.m. his brothers PW-11 Sachin Rathi

and Gokul Rathi informed him that deceased are not to be

seen and their house is also locked and they are not

responding to phone calls. Therefore, he returned from

Thirupathi via Raichur. Since they found the house of

deceased locked and as both deceased had undergone

open heart surgery and were aged, they were searched in

hospitals. Complainant also called KLE hospital where they

had undergone open heart surgery and enquired as to

whether deceased are admitted to the hospital. On finding

that they are not hospitalized, after deliberating with each

other, they got the lock of the house opened and finding

both deceased dead inside their bed room with ligature

mark on their neck, a complaint came to be filed as per

Ex.P1.

18. The learned counsel for accused No.6

submitted that in the complaint the details of the valuables

missing from the house of deceased is not forthcoming and

as such the evidence of recovery is doubtful. It is pertinent

to note that the complainant is not a family member of the

deceased. At the first available opportunity, he has lodged

the complaint. At the said stage and even subsequently,

he was not in a position to know what exactly was the

valuables missing from their house. Only after recovery

and on the basis of they having seen the deceased wearing

and using the said valuables, they have identified the

same. A complaint cannot be expected to be an

encyclopedia of the prosecution case. Having regard to

these aspects, we are of the considered opinion that the

non mentioning of the details of the missing valuables in

the complaint does not go to the root of the prosecution

case, so long as it is able to establish the guilt of the

accused beyond reasonable doubt.

19. During the cross-examination of PW-1 it is

elicited that earlier he was tenant of deceased

Lakshminarayana @ Sathyanarayana Rathi and at his

insistence he had to vacate the same. However, he has

denied that he had committed the murder of deceased and

filed a false complaint. In fact during the cross-

examination of the Investigating Officer i.e., PW-20, it is

elicited that complainant was also a suspect and he was

subjected to Narco Analysis test and he came clean out of

it. If at all PW-1 was involved in the said crime, it cannot

be expected that he would have come forward to lodge

complaint. He would have absconded. Though suspected

and as there is no evidence to show his involvement, the

Investigating Officer has not further proceeded against

him. Admittedly, no recovery is made at his instance. In

these type of cases, where there are no eye witnesses and

having regard to the fact that deceased were issueless and

the close relatives are going to be benefited by their death,

it is quiet natural for the needle of suspicion to be against

them. However, there is no evidence to prove that any of

the relatives of the deceased including PW-1 are involved

in the incident in question.

20. PWs-1, 2, 11 and 12 have been cross-

examined at length suggesting that the house of the

deceased is situated in a busy area surrounded by school,

residential premises, shops and frequented by people,

thereby implying that the neighbours would have heard

the cries of the deceased. The very fact that nobody heard

their cries goes to show that the assailants have succeeded

in committing the crime without rising any suspicion of the

neighbours. Moreover, the deceased were seen for the last

time in the evening of 06.02.2008 by the owner of

adjoining hotel. From the next day onwards they were not

seen alive. Thus, the evidence of PWs.1, 2, 11 and 12

prove the fact that on the night of 06.02.2008, deceased

Lakshminarayana @ Sathyanarayana Rathi and deceased

Leelavathi Rathi were done away and it came to light only

on 08.02.2008 when PWs-1, 2, 11 and 12 opened the door

with the help of key maker and a complaint came to be

lodged.

21. After registering the case, the Investigating

Officer has visited the spot and drawn spot mahazar

Ex.P16. PW-3 - Amit Mundada is a witness to the spot

mahazar. He has spoken to about it and stated that from

the spot the Investigating Officer has seized a glass

(tumbler) at MO-36 and a steel plate at MO-37. Since he

was unable to recollect the fact that at the spot, a key was

also found, to that extent he is treated as hostile.

However, during the cross-examination by the prosecution,

he has admitted that the said key was found at the spot

and it is marked at MO-38.

22. PW-2 Govardhandas Buthada is also a witness

to the inquest of deceased Lakshminarayana @

Sathyanarayana Rathi at Ex.P2 and deceased Leelavathi

Rathi at Ex.P5. He has deposed to that effect and identified

his signatures as well as the photographs captured at the

time of inquest at Ex.P3, 4, 6 and 7.

23. PW-2 is also a witness to the seizure of clothes

of deceased as per Ex.P8 and 9 and identified the clothes

as per MOs-12 to 19.

24. As per the order sheet dated 18.09.2017, the

Medical Officer who has conducted the post mortem

examination of both deceased viz., CW-54 Dr S.S.Chincholi

is reported to be dead. True copy of his death certificate is

also produced before the Court. Consequently, the

prosecution was unable to examine him. However, through

the evidence of PW-18, the PM reports of both deceased

are marked as Ex.P53 and 54. As per these documents,

the cause of death is as Asphixia, as a result of

strangulation and the time since death is 24 to 48 hours

prior to their post mortem examination. In view of the

death of CW-54, the reports at Ex.P53 and 54 are

admissible in evidence under Section 32 of the Indian

Evidence Act. Moreover the defence has not disputed the

cause of death of the deceased or at least demonstrated

that their cause of death is inconsistent with the case put

forth by the prosecution. Thus, from the above discussion,

we hold that the prosecution has proved that both the

deceased were found alive on the evening of 06.02.2008

and on 08.02.2008 when PWs-1, 2, 11 and 12 got opened

the key of the house with the help of key maker, they were

found dead. The PM report at Ex.P53 and 54 corroborate

with the case of prosecution.

25. Admittedly, there are no eye witnesses to the

incident. The entire case of the prosecution is based on

recovery of the material objects belonging to the deceased

at the instance of accused persons. Since the present

appeal is by accused No.6 Ramesh Pawar, we are

concerned with the recovery made at his instance.

26. Now coming to the evidence led by the

prosecution with regard to the recovery of incriminating

material at the instance of accused No.6 Ramesh Pawar. It

is pertinent to note that PW-1 who is the complainant is

not cited as a witness to the recovery mahazar at the

instance of various accused. As already discussed

deceased were not having any issues. Therefore, as a close

relative of the deceased being the brother's son i.e.,

nephew of Lakshminarayana @ Sathyanarayana Rathi, it

appears the Investigating Officer has secured his presence

to ascertain whether the recovered articles belong to

deceased or not and to proceed in the proper direction.

27. His evidence reveal that he was present when

recovery of a Titan watch and gold ring at MOs-1 and 2

were made at the instance of accused No.1. Similarly, he

was also present when gold chain, ear studs and a silver

Bille (¨É½îAiÀÄ ©¯Éè) at MOs-3 to 5 were recovered at the

instance of accused No.3. He has also spoken to about the

recovery of a gold bangle, Rs.80,000/- in cash, a button

knife and a silver plate recovered at the instance of

accused No.4, out of which he has identified gold bangle at

MO-6 as belonging to deceased Leelavathi Rathi. Similarly,

he has spoken to about the recovery of 42 items from the

residence of accused No.5, out of which he has identified

the gold bangle at MO-7 as belonging to his aunt i.e.,

deceased Leelavathi Rathi. Further, he has also spoken to

about the recovery of cell phones, cash, a lady's watch and

gold ornaments at the instance of accused No.7. Out of the

same, he has identified the gold bangle, silver watch

belonging to deceased Leelavathi Rathi at MOs-9 to 11.

Even though the evidence with regard to recovery of

incriminating articles at the instances of accused No.1, 3,

4, 5 & 7, is not relevant so far as the present accused i.e.,

accused No.6 is concerned, this evidence is discussed in

order to show that as a close relative of deceased, PW-1

was in a position to identify the stolen articles as belonging

to the deceased.

28. So far as accused No.6 Ramesh Pawar is

concerned, PW-1 has deposed that on 07.01.2009 accused

No.6 led them i.e, himself, panchas, Ravi Kumatagi, Pattar

to his house situated at Murgod Chal of Vidyanagar,

Hubballi and produced MO-8 bangle, cash and other

articles and the same was seized by the Police through

mahazar. Out of them he has identified the gold bangle

belonging to the deceased at MO-9. So far as his capacity

to identify the valuables belonging to the deceased are

concerned, PW-1 has specifically deposed that since they

were being used by the deceased and he had seen them

wearing them, he is able to identify the said articles. Even

though he has been cross-examined at length, nothing

material is elicited so as to render his evidence

inadmissible or affect his credibility.

29. PW-2 Govardhandas Bhutada is a witness to

the recovery of stolen articles at the instance of accused

Nos.5, 6 and 7. His evidence establish the fact that at the

instance of accused No.5 Nagaraj Jambigi from his house a

live bomb, bullets, mobile, Jambe (dagger), Rs.6 lakhs in

cash, battery, rope and other articles in all numbering 47

were recovered through memorandum Ex.P10 and

mahazar Ex.P11. He has identified MOs-2 to 7 and 20 to

32.

30. Speaking with regard to the recovery made at

the instance of accused No.6 Ramesh Pawar, PW-2 has

deposed that at the time of recovery made at the instance

of accused Nos.5 and 6 Ravi Kumatagi, complainant

Dwarakanath were also present. He has stated that

accused No.6 led them to Murgod Chal situated behind

P.C.Jobin College of Hubballi and opened the room and

produced a gold bangle, a finger ring in all numbering 7

items and the same were seized through Ex.P12 and 13.

He has identified the seized articles at MOs-8 to 10, 33 and

34. He has also identified accused No.6 before the Court.

The evidence of PW-2 with regard to recovery of

incriminating articles at the instance of accused No.6 is

established.

31. However, during his cross-examination he has

admitted that in S.C.No.43/2009 on the file of FTC-III,

Dharwad, he has deposed that during the recovery

accused No.6 Ramesh Pawar was sitting inside the Jeep

whereas accused No.5 Nagaraj Jambigi alone went inside

the house. However, the defence has not produced his

deposition given in S.C.No.43/2009 on the file of FTC-III

Court, Dharwad. It is pertinent to note that as the accused

were involved in number of cases series of recoveries were

made in a continuous mahazar with the common

witnesses. In fact witnesses to the mahazar are entitled to

look into the document. However, usually it is found that

while they are being cross-examined, they are not allowed

to look into the mahazar and they are cross-examined as

though they are giving a memory test. In the absence of

his deposition in S.C.No.43/2009, on the file of FTC-III

Court, Dharwad being produced, the Court is not able to

examine his evidence in its entirety to ascertain whether

his testimony given in that case is contrary to his evidence

deposed before this Court. It is pertinent to note that

having regard to the fact that there are 9 accused involved

in this case and all the accused persons have involved in

series of robberies and murder, there are several

recoveries made. While recoveries are made at the

instance of one accused, the other accused should be kept

back. In this context, the admission given by PW-2 is

required to be examined. Unless and until the deposition in

which the witness is said to have given some admission is

placed on record, the same cannot be relied upon merely

on the basis of a stray admission given by the witness.

32. Now coming to the evidence of PW-8 Prakash

Bhandary who is a witness to the recovery of stolen

articles at the instance of accused Nos.5, 6 and 7. He has

spoken to about the recovery of two live bullets, two live

bombs, cash, monkey caps, choppers, knife, gold

ornaments and silver articles at the instance of accused

No.5 and 6. His evidence also prove the fact that accused

No.6 led the Investigating Officer, complainant, mahazar

witnesses to his room and produced cash, gold ornaments

and silver articles and the same were seized through

Ex.P13. He has identified a pair of silver lamps, a pair of

silver Bille and a gold bangle at MOs-8 to 10, 33 and 24.

He has also identified accused No.6 before Court. A

suggestion is made to PW-8 that in the case pertaining to

accused Nos.5 and 6 on the file of Bijapur Court, he has

stated that in his presence no articles have been seized

which suggestion he has admitted. However, the defence

has not produced the said deposition to examine the same

as to in what context he came to give such evidence. As

discussed with regard to PW-2, this stray admission would

not affect the credibility of his evidence, unless and until

the said deposition is placed on record for the scrutiny of

the Court.

33. Even though PW-8 is also cross-examined at

length, nothing worth is elicited to indicate that his

credibility is shaken. Of course, the evidence of PW-1 give

credence to the testimony of PW-2 and 8 with regard to

the recovery made at the instance of accused No.6

Ramesh Pawar as well as the other accused. The evidence

of PWs-1, 2 and 8 is also supported by the testimony of

PW-33 who has spoken to about the investigation

conducted by CW-62 I.A.Patil, Dy.S.P. and who was no

more when the trial was going on. It is pertinent to note

that the defence has not specifically denied identification of

the stolen articles recovered at the instance of all accused

persons more particularly from accused No.6,. Admittedly,

the accused persons are not claiming that the seized

articles and cash belong to them. They have no

explanation as to possessing these articles. In the 313

statement also they have given no explanation with regard

to the same.

34. Now coming to the evidence led by the

prosecution with regard to the investigation. PW-17

Dundappa Lakkannavar has registered the case based the

complaint given by PW-1. Thereafter, he has handed over

the further investigation to Circle Inspector. However, on

his direction, he has also conducted inquest on the dead

body of deceased Leelavathi Rathi as per Ex.P5. He has

deposed to this effect.

35. PW-18 Shekarappa Tholamatti has conducted

further investigation. He has conducted the inquest on the

dead body of the deceased Lakshminarayana @

Sathyanarayana Rathi as per Ex.P2. He has also seized the

clothes pertaining to the deceased through mahazar Ex.P8

and 9. He has conducted the spot mahazar as per Ex.P16.

He has also drawn the rough sketch as per Ex.P52. It is

pertinent to note that CW-54 - Dr.S.S.Chincholi who has

conducted the post mortem of both deceased has expired.

Therefore, post mortem reports are marked through PW-

18 as per Ex.P53 and 54. He has identified the signature of

the Medical Officer as per Ex.P53(b) and P54(b) whereas

the signature of PW-18 are marked as per Ex.P53(a) and

(b). As per Ex.P53 and 54, the death of deceased was due

to Asphixia as a result of strangulation.

36. Though the defence has raised objection for

marking the signatures of the Medical Officer through PW-

18, the accused have not disputed the cause of death of

the deceased. They also do not dispute that the Medical

Officer i.e., CW-54 who conducted the post mortem

examination of the deceased is no more. Such being the

case by way of secondary evidence, these documents are

marked through the Investigating Officer who has received

the post mortem reports during the course of

investigation. It is pertinent to note that even though the

incident took place on 06.02.2008, the Investigation

Officer did not have any break through in the investigation.

During the course of the investigation, the Investigating

Officer has recorded the statement of relatives of deceased

Leelavathi Rathi. When they expressed suspicion regarding

the involvement of the complainant in the crime, he has

given requisition for Narco Analysis test of the

complainant. PW-18 has given evidence to that effect.

However, he has stated that before he could get

permission, he was transferred.

37. PW-19 Saidappa Kattimani has conducted

further investigation. He has deposed that on 05.05.2008,

he received information from CPI, Gokak that accused who

are arrested by the Gokak Police, is involved in the present

case. Though he took the body warrant of Kedari

Basavaneppa @ Basavaneppa Jadhav, Anand

Ramachandra Holegar and Yamanppa Shivalingappa

Tharihal to his police custody, he did not get any useful

information through them and as such he has returned

them to the original crime number. During his cross-

examination, PW-19 has stated that he did not find any

substance in the allegations made by CW-25 to 32 against

the complainant and in the meanwhile as he came to know

that accused No.5 Nagaraj Jambigi and others have

committed the offence, he did not proceed against the

complainant.

38. PW-20 Ramachandra Benthur has conducted

further investigation. He has deposed that on 27.01.2009,

CW-62 I.A.Patil handed over the recovered articles

pertaining to this case which were seized in Cr.No.20/2008

on the point of jurisdiction. He received the same. The

covering letter is marked as Ex.P55. He has also identified

MOs-2 to 11, 20-35 pertaining to this case. He has also

deposed with regard to recording of further statement of

complainant and CWs-12 to 26, 27 to 32. He has recorded

the voluntary statement of the accused persons and as per

their statement they have pointed out the place of

occurrence as well as their residences and he has drawn

mahazar. However, this part of the evidence with regard to

the voluntary statement of accused persons is inadmissible

as there is no recovery at the instance of the accused

persons and the place of occurrence as well as their

residences was already come to the knowledge of the

Investigating Officer. PW-20 has also deposed with regard

to recovery of two bicycles at the instance of accused No.6

as per his voluntary statement through mahazar at Ex.P26.

The photographs of the bicycles are marked as per MOs-39

and 40. He has also secured the opinion of the Medical

Officer as to the use of the rope for committing the murder

as per Ex.P58. He has identified accused No.6 before the

Court.

39. It is pertinent to note that CW-62 I.A.Patil, the

then Dy.S.P, Bagalkot Sub-division has conducted the

investigation and made recovery at the instance of accused

persons. During the pendency of the trial, he died.

Therefore, the prosecution has led secondary evidence by

examining PW-21 Virupakshagouda Patil, who was writer

working with CW-62 I.A.Patil. Under Section 32 of the

Evidence Act, the testimony of PW-21 with regard to the

investigation conducted by CW-62 I.A.Patil, who is no

more is admissible. During the course of evidence of

PW-21 the defence has raised objections regarding

marking of documents pertaining to the investigation

conducted by CW-62 I.A.Patil. Under Section 32(2) of

Evidence Act, 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 evidence or

whose attendance cannot be procured, without an amount

of delay or expenses which under the circumstances of the

case appears to the Court unreasonable, are relevant when

they are made in the ordinary course of business and in

particular in the discharge of professional duty.

40. Therefore, the objections raised by the defence

with regard to marking of documents and signatures

through PW-21 is not tenable. Thus, through the evidence

of PW-1, 2 and 8, the prosecution has proved the recovery

made at the instance of accused No.6 Ramesh Pawar.

Those material objects stolen by the accused persons and

recovered at the instance of accused No.6 and which are

proved to belong to deceased Lakshminarayana @

Sathyanarayana and his wife deceased Leelavathi Rathi.

Therefore, the charge leveled against accused No.6 are

proved beyond reasonable doubt.

41. It is argued by the learned counsel for accused

that though charge sheet was filed against 9 persons, only

2 are convicted and as such Section 149 IPC is not

applicable and therefore, conviction of accused No.6 with

its aid is not tenable.

42. As discussed earlier, there are no eye

witnesses to the incident and therefore, no question of

complainant or others knowing as to how many accused

are involved. However, the investigation and the evidence

placed on record prove the involvement of accused Nos.1

to 9. Admittedly, accused No.5 and 9 died during the

pendency of the trial. The acquittal of accused Nos.2 to 4

and 6 to 8 is only on the ground of lack of support by

independent witnesses to the recovery at their instance.

Therefore, the argument of the defence that the provisions

of Section 149 IPC cannot be pressed into service is not

tenable.

43. We have carefully analyzed the oral and

documentary evidence placed on record by the prosecution

and are of the considered opinion that the prosecution has

proved the charges leveled against accused No.6 Ramesh

Pawar beyond reasonable doubt and as such the appeal

filed by him fails.

44. Now, coming to the citations relied upon by the

learned counsel for accused.

(i) In Prem's case referred to supra, the incident took place in dark and there was no light and therefore Court did not believe the prosecution case that the witnesses were able to identify the accused. The entire case of the prosecution is based on the recovery of the stolen property at the instance of accused. Therefore, this decision is not applicable to the case on hand.

(ii) In Munshi Singh's case referred to supra, the Hon'ble Supreme Court dealt with the significance of holding TI Parade and held that the trial Court ought not to have believed the testimony of PW-12 therein in the absence of TI Parade. However, the present case is not based on the identity of the accused by the witnesses, but on the recovery of the stolen property at the instance of accused. Therefore, this decision is not applicable to the case on hand.

(iii) In Rajkumar's case referred to supra, the trial Court did not record a finding that there were 6 accused persons and out of them, only 4 were identified and as such the trial Court held that the offence of dacoity is not proved. In the present case, the fact of involvement of 9 accused is proved by recovery at their instance.

However, out of them 2 died during the pendency of the trial, 5 were acquitted for lack

of proof of their involvement on account of recovery witnesses not supporting.

    Consequently,       2   accused           persons        were
    convicted.   Therefore,      this     decision      is    not
    applicable to the case on hand.

(iv) In Mala Singh's case referred to supra, 11 accused were convicted by the trial Court. However, the High Court acquitted accused Nos.1 to 6, 10 and 11. It convicted the remaining accused with the aid of Section 34 IPC. The Hon'ble Supreme Court held that the High Court is not justified in so doing. In the present case, the involvement of 9 accused is established by the prosecution. Therefore, this decision is not applicable to the case on hand.

(v) In Rebanna's case referred to supra, the Hon'ble Division Bench of this Court remanded the case to the trial Court to provide prosecution opportunity to prove its case. This decision is not applicable to the facts and circumstances of the present case.

(vi) In Nagendra Sah's case referred to supra, it was a case of death of the wife due to Asphixia, whereas the accused projected it as a case of death due to accidental burns. The Hon'ble Supreme Court reversed his conviction on the

ground that the prosecution has failed to discharge its initial burden and Section 106 of Indian Evidence Act could be pressed into service only after the initial burden is discharge by the prosecution. This decision is also not applicable to the case on hand.

(vii) In Sakariya's case referred to supra, it was a case of rape and in the absence of chemical report, the High Court set aside the conviction.

     It    is   not    applicable   to     the     facts      and
     circumstances of the present case.

(viii)     The Talevar's case referred to supra deals

with person in possession of stolen articles and therefore, the Hon'ble Supreme Court held that presumption of the accused having caused death cannot be raised. However, in the present case the accused have not taken up the defence that they are only receivers of the stolen property. In fact they have not explained their possession of the cash and valuables belonging to the deceased. Such being the case they cannot press into the service of this decision.

(ix) In Rajkumar @ Raju's case referred to supra, the Hon'ble Supreme Court held that where some of the accused were acquitted on the ground of their participation not proved, the rest

cannot be convicted with the aid of Section 149 IPC. However, in the present case some of the accused were acquitted only because the witnesses to the recovery did not support the prosecution case. However, there is evidence of other witnesses to prove their participation attracting Section 149 IPC. Therefore, this decision is not applicable to the case on hand.

(x) In NCT of Delhi's case referred to supra, it was a case of death based on circumstantial evidence and the accused was given the benefit of doubt on the ground that charges were not proved beyond reasonable doubt. However, this decision is not applicable to the facts and circumstances of the present case.

45. On the other hand in Shri Bhagawan's case

referred to supra by the prosecution, the Hon'ble Supreme

Court confirmed the conviction on the ground that accused

have no explanation for possession the stolen property. In

Saktu's case referred to supra, the Hon'ble Supreme

Court held that merely because some of the accused were

not convicted for want of identification, however, it is not a

ground to acquit others when participation of more than

five persons is proved. In Ronny's case referred to supra,

the Hon'ble Supreme Court held that when the accused

have no explanation for possessing articles belonging to

the deceased, presumption under section 114 of evidence