Karnataka High Court
Sri Chandra vs The State Of Karnataka on 4 November, 2022
Bench: K.Somashekar, T G Gowda
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.118 OF 2021
CONNECTED WITH
CRIMINAL APPEAL NO.53 OF 2021,
CRIMINAL APPEAL NO.54 OF 2021 AND
CRIMINAL APPEAL NO.1068 OF 2020
IN CRL.A.118 OF 2021:
BETWEEN:
1. Sri. Rangaswamy @ Ranga
S/o Ramakrishnappa
Aged about 31 years
R/at Rangaswamy Provision Store
13th Cross, Near Mullakatamma Temple
Mayura Nagara, Andrahalli Main Road
Peenya 2nd Stage
Bengaluru - 560 058.
2. Sri. R. Shankar
S/o. Ramaiah
Aged about 29 years
R/at No.106, 2nd Cross
1st Main, Sanjeevini Nagar
Hegganahalli, Peenya 2nd Stage
Bengaluru - 560 058.
2
3. Sri. Raghavendra @ Raghu
S/o. Jayaram
Aged about 29 years
R/at Om Shakthi Temple Road
Hegganahalli, Peenya 2nd Stage
Bengaluru - 560 058.
...Appellants
(By Sri. B.V. Acharya - Sr. Counsel for
Sri. Vishnumurthy - Advocate)
AND:
State of Karnataka
By Chamarajpet Police Station
Rep. by Special Public Prosecutor
Dr. Ambedkar Veedhi
Bengaluru - 560 001.
...Respondent
(By Sri. Ashok N. Naik - Spl. P.P)
This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, by the Advocate for the
appellant praying to set aside the judgment and order of
conviction orders on sentence dated 28.10.2020 and
sentence dated 29.10.2020 passed in S.C.No.428/2013
on the file of the LVII-Addl. City Civil & Session Judge,
Bangalore and acquit the appellants who are convicted
for offences sentenced Appellants No. 1 to 11 to undergo
rigorous imprisonment for two years for the offence
punishable under Sections 120(B) r/w 149 of IPC and to
pay fine of Rs.2,000/- each and in default of payment of
fine further undergo simple imprisonment for three
months. Appellants No. 1 to 11 to undergo simple
imprisonment for six months for the offence punishable
under Sections 143 r/w 149 of IPC and to pay fine of
3
Rs.2,000/- each, and in default of payment of fine
further undergo simple imprisonment for two months,
appellants No.1 to 11 to undergo simple imprisonment
for one year for the offence punishable under Sections
147 r/w 149 of IPC and to pay fine of Rs.1000/- each
and in default of payment of fine further undergo simple
imprisonment for one month, appellants No.1 to 11 to
undergo simple imprisonment for two years for the
offence punishable under Section 148 r/w 149 of IPC
and to pay fine of Rs.3,000/- each and in default of
payment of fine further undergo simple imprisonment
for two months, appellants No.4, 5, 7, 8 & 12 are
sentenced to undergo rigorous imprisonment for six
months for the offence punishable under Sections 109
r/w 149 of IPC and to pay fine of Rs.3,000/- each, and
in default of payment of fine further undergo simple
imprisonment for three months, appellant Nos.1, 4, 5,
7, 8, 9 & 11 are sentenced to undergo simple
imprisonment for six months for the offence punishable
under Sections 150 r/w 149 of IPC and to pay fine of
Rs.2,000/- each, and in default of payment of fine
further undergo simple imprisonment for one month.
The appellant No.3 is sentenced to undergo simple
imprisonment for 3 months for the offences punishable
under Section 506(B) r/w 149 IPC and to pay fine of
Rs.1,000/- ad in default of payment of fine further
undergo simple imprisonment for 15 days. The
appellants No.1 to 12 are sentenced to undergo rigorous
imprisonment for life for the offence punishable under
Sections 302 r/w 149 of IPC and to pay fine of
Rs.25,000/- each and in default of payment of fine
further undergo simple imprisonment for six months
4
IN CRL.A.53 OF 2021:
BETWEEN:
1. Sri. Chandra
S/o. Nataraj
Aged about 32 years
R/at Maramma Temple
Compound, 1st Main
3rd Cross, Goripalya
Bengaluru - 560 018.
2. Shankar @ Gunda
S/o Late Sunar
Aged about 32 years
R/at No.278, 6th Cross
K.P. Agrahara, Nethajinagar
Bengaluru - 560 018.
3. Sri. Umashankara @ Bhavani
S/o. Late Ashvathraman
Aged about 45 years
R/at NO.206, 1st Main
2nd Cross, Binnepet New Layout
Bengaluru - 560 018.
4. Sri. Velu
S/o. Late Dhanpal
Aged about 41 years
R/at No.111, 3rd Cross
Anandapura, Mysore Road
Bengaluru - 560 036.
5. Sri. Loganatha
S/o. Channappa
Aged about 50 years
R/at No.17, 2nd Main Road
5
Nanjamba Agrahara
Chamarajpet
Bengaluru - 560 018.
6. Sri. Jaheer
S/o. Rehamathulla
Aged about 31 years
R/at No.18/A, "C" Street
J.J. Nagar
Bengaluru - 560 026.
7. Sri. Suresh @ Suri @ Surya
S/o. Venkataramu
Aged about 29 years
R/at Hosapete Circle
Huliyur Durga, Kunigal Taluk
Tumkur District - 572123.
...Appellants
(By Sri. Ajith Anand Shetty - Advocate for Appellant - 1;
Sri. Sathyanarayana S. Chalke - Advocate for
Appellants No.2 to 4;
Sri. M. Devaraja - Advocate for Appellants No. 5 & 6;
Sri. Vishnumurthy - Advocate for Appellant No.7)
AND:
The State of Karnataka
By Chamarajapete Police Station
Rep: by Spl. PP
Ashok N. Naik
High Court of Karnataka
Bangalore - 560 001.
...Respondent
(By Sri. Ashok N. Naik - Spl. PP for Respondent)
6
This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, by the Advocate for the
appellant praying to set aside the judgment of
conviction passed by LVIII-Addl. City Civil and Sessions
Judge, Bengaluru City, in S.C.No.428/2013 dated
28/10/2020 and 29.10.2020 convicting Appellant Nos.
1 to 11 to undergo rigorous imprisonment for two years
for the offence punishable under Sections 120(B) r/w
149 of IPC and to pay fine of Rs.2,000/- and in default
of payment of fine further undergo simple imprisonment
for three months. Appellant Nos. 1 to 11 to undergo
simple imprisonment for six months for the offence
punishable under Sections 143 r/w 149 of IPC and to
pay fine of Rs.2,000/-, and in default of payment of fine
further undergo simple imprisonment for two months,
appellants No.1 to 11 to undergo simple imprisonment
for one year for the offence punishable under Sections
147 r/w 149 of IPC and to pay fine of Rs.1000/- and in
default of payment of fine further undergo simple
imprisonment for one month, appellants No.1 to 11 to
undergo simple imprisonment for two years for the
offence punishable under Section 148 r/w 149 of IPC
and to pay fine of Rs.3,000/- and in default of payment
of fine further undergo simple imprisonment for two
months, appellants No.4, 5, 7, 8 & 12 are sentenced to
undergo rigorous imprisonment for six months for the
offence punishable under Sections 109 r/w 149 of IPC
and to pay fine of Rs.3,000/-, and in default of payment
of fine further undergo simple imprisonment for three
months, appellant Nos.1, 4, 5, 7, 8, 9 & 11 are
sentenced to undergo simple imprisonment for six
months for the offence punishable under Sections 150
r/w 149 of IPC and to pay fine of Rs.2,000/-, and in
default of payment of fine further undergo simple
imprisonment for one month, appellants No.1 to 12 are
sentenced to undergo rigorous imprisonment for life for
7
the offence punishable under Sections 302 r/w 149 of
IPC and to pay fine of Rs.25,000/- each and in default
of payment of fine further undergo simple imprisonment
for six months and acquit him.
IN CRL.A.54 OF 2021:
BETWEEN:
Sri. C. Govindaraju
S/o Channappa
Aged about 50 years
R/at No.17, 2nd Main Raod
Nanjamba Agrahara
Chamarajpet
Bengaluru - 560 018.
...Appellant
(By Sri. C.V. Nagesh - Sr. Counsel for
Sri. Raghavendra K - Advocate for Appellant)
AND:
The State of Karnataka
By Chamarajapete Police Station
Rep. by Spl. PP
Ashok N. Naik
High Court of Karnataka
Bangalore - 560 001.
...Respondent
(By Sri. Ashok N. Naik - Spl. PP for Respondent)
This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, by the Advocate for the
appellant praying to set aside the judgment of
conviction passed by LVIII-Addl. City Civil and Sessions
Judge, Bengaluru City, in S.C.No.428/2013 dated
28/10/2020 and 29.10.2020 convicting him to undergo
8
rigorous imprisonment for two years for the offence
punishable under Sections 120(B) r/w 149 of IPC and to
pay fine of Rs.2,000/- and in default of payment of fine
further undergo simple imprisonment for three months,
to undergo simple imprisonment for six months for the
offence punishable under Sections 143 r/w 149 of IPC
and to pay fine of Rs.2,000/-, and in default of payment
of fine further undergo simple imprisonment for two
months, to undergo simple imprisonment for one year
for the offence punishable under Sections 147 r/w 149
of IPC and to pay fine of Rs.1000/- and in default of
payment of fine further undergo simple imprisonment
for one month, to undergo simple imprisonment for two
years for the offence punishable under Section 148 r/w
149 of IPC and to pay fine of Rs.3,000/- and in default
of payment of fine further undergo simple imprisonment
for two months, to undergo rigorous imprisonment for
six months for the offence punishable under Sections
109 r/w 149 of IPC and to pay fine of Rs.3,000/-, and in
default of payment of fine further undergo simple
imprisonment for three months, to undergo simple
imprisonment for six months for the offence punishable
under Sections 150 r/w 149 of IPC and to pay fine of
Rs.2,000/-, and in default of payment of fine further
undergo simple imprisonment for one month, to
undergo rigorous imprisonment for life for the offence
punishable under Sections 302 r/w 149 of IPC and to
pay fine of Rs.25,000/- and in default of payment of fine
further undergo simple imprisonment for six months
and acquit him.
IN CRL.A.1068 OF 2020:
BETWEEN:
Gowramma
W/o C. Govindaraju
9
Aged about 50 years
R/at No.17, 2nd Main Road
Nanjamba Agrahara
Shankar Layout, Chamarajpet
Bangalore - 560 018
Ex-Corporater
Judicial Custody Under going
Sentence at Central Prison
Parappana agrahara
Bangalore.
...Appellant
(By Sri. C.V.Nagesh - Sr. Counsel for
Sri. Raghavendra K - Advocate for Appellant)
AND:
State of Karnataka
By Chamarajpet Police
Rep. by SPP
High Court Building
Bangalore - 560 001.
...Respondent
(By Sri. Ashok N. Naik - Spl. PP for Respondent)
This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, by the Advocate for the
appellant praying to set aside the judgment of
conviction dated 28.10.2020 and sentence dated
29.10.2020 passed in S.C.No.428/2013 before the 58TH
Addl. City Civil and Sessions Judge at Bangalore of
Chamarajpet Police Station for the offence punishable
under Section 302, 109 r/w 149 of IPC and appellant
may be acquitted.
10
These criminal appeals having been heard and
reserved for judgment, coming on for pronouncement
this day, K. SOMASHEKAR .J., delivered the following:
JUDGMENT
All these Criminal Appeals have been filed by the
accused / appellant in the respective appeals, seeking
to set aside the judgment of conviction rendered by the
LVIII Addl. City Civil and Sessions Judge (CCH-59),
Bengaluru City, in S.C.No.428/2013 dated 28.10.2020
and to thereby acquit the accused / appellant in the
respective appeals of the offences leveled against them.
Since all these appeals arising out of the same judgment
in S.C.No.428/2013, they are heard together and are
disposed of by this common judgment.
2. The appeal in Crl.A.No.118/2021 has been
preferred by appellants / Accused Nos.1 to 3 namely,
Rangaswamy @ Ranga / Accused No.1, R. Shankar /
Accused No.2 and Raghavendra @ Raghu / Accused
No.3, challenging the judgment of conviction dated
28.10.2020 and order of sentence dated 29.10.2020
rendered by the Trial Court in S.C.No.428/2013. By
the said judgment, the Trial Court has convicted the
present appellants / Accused Nos.1 to 3 for offences
punishable under Sections 120-B, 143, 147, 148, 302
and read with Section 149 of the IPC. Apart from the
same, Accused No.1 has been convicted for offences
punishable under Section 150 read with Section 149 of
the IPC. Further, Accused No.3 has been convicted also
for offences punishable under Section 506-B read with
Section 149 of the IPC. They have 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/- each
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/- each 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 fine of
Rs.1,000/- each along with default clause; further to
undergo simple imprisonment for two years for the
offence punishable under Section 148 read with Section
149 of the IPC and to pay a fine of Rs.3,000/- each with
default clause; Accused No.1 was sentenced to undergo
simple imprisonment for six months for the offence
punishable under Section 150 read with Section 149 of
the IPC and to pay a fine of Rs.2,000/- along with
default clause; Accused No.3 was sentenced to undergo
simple imprisonment for three months for the offence
punishable under Section 506-B read with Section 149
IPC and to pay a fine of Rs.1,000/- along with default
clause; and Accused Nos.1 to 3 were sentenced to
undergo rigorous imprisonment for life for the offence
punishable under Section 302 read with Section 149 of
the IPC and to pay a fine of Rs.25,000/- 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.
3. The appeal in Crl.A.No.53/2021 is preferred by
appellants / Accused Nos.4, 5, 6, 7, 9, 10 and 11
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 all the
appellants / Accused Nos.4, 5, 6, 7, 9, 10 and 11 for
offences punishable under Sections 120-B, 143, 147,
148, 302 read with Section 149 of the IPC. Apart from
these, Accused Nos.4, 5 and 7 were also convicted for
offences under Section 109 read with Section 149 IPC
and Accused Nos.4, 5, 7, 9 and 11 were further
convicted for offences punishable under Section 150
read with Section 149 of the IPC. All the said accused
have been sentenced to undergo imprisonment for the
aforesaid offences and to pay fine as stated in the
operative portion of the judgment in S.C.No.428/2013
along with default clause. All the sentences of
imprisonment were to run concurrently with a further
direction that the entire fine amount was to be remitted
to the State.
4. The appeal in Crl.A.No.54/2021 pertains to one
C. Govindaraju / Accused No.8 challenging the
judgment of conviction dated 28.10.2020 and order of
sentence dated 29.10.2020 rendered by the Trial Court
in S.C.No.428/2013. By the said judgment, the Trial
Court has convicted the present appellant / Accused
No.8 for offences punishable under Sections 120-B,
143, 147, 148, 150, 302 and 109 read with Section 149
of the IPC. He has been sentenced to undergo rigorous
imprisonment for two years for the offences punishable
under Section 120-B read with Section 149 IPC and to
pay a fine of Rs.2,000/- along with default clause;
further to undergo simple imprisonment for six months
for the offence punishable under Section 143 read with
Section 149 of the IPC and to pay a fine of Rs.2,000/-
along with default clause; further to undergo simple
imprisonment for one year for the offence punishable
under Section 147 read with Section 149 of the IPC and
to pay a fine of Rs.1,000/- along with default clause;
further to undergo simple imprisonment for two years
for the offence punishable under Section 148 read with
Section 149 of the IPC and to pay a fine of Rs.3,000/-
with default clause; further to undergo rigorous
imprisonment for six months for the offence punishable
under Section 109 read with Section 149 of the IPC and
to pay a fine of Rs.3,000/- along with default clause;
further to undergo simple imprisonment for six months
for the offence punishable under Section 150 read with
Section 149 of the IPC and to pay a fine of Rs.2,000/-
along with default clause; and to undergo rigorous
imprisonment for life for the offence punishable under
Section 302 read with Section 149 of the IPC and to pay
a fine of Rs.25,000/- 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.
5. The appeal in Crl.A.No.1068/2020 pertains to
one Gowramma, W/o. C. Govindaraju / Accused No.12
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.12 for offences
punishable under Sections 109, 302 read with Section
149 of the IPC. She has been sentenced to undergo
rigorous imprisonment for six months for the offence
punishable under Section 109 read with Section 149 of
the IPC and to pay a fine of Rs.3,000/- along with
default clause; and to undergo rigorous imprisonment
for life for the offence punishable under Section 302
read with Section 149 of the IPC and to pay a fine of
Rs.25,000/- along with default clause. Both the
sentences of imprisonment were to run concurrently
with a further direction that the entire fine amount was
to be remitted to the State.
6. We have heard the arguments advanced by the
learned Senior Counsel Shri C.V. Nagesh who had
appeared on behalf of the counsel on record Shri
Raghavendra K for appellant in Crl.A.No.54/2021 /
Accused No.8 and for the appellant in
Crl.A.No.1068/2020 / Accused No.12.
In respect of the appeal in Crl.A.No.53/2021, we
have heard the arguments of Sri.Ajith Anand Shetty,
learned counsel for appellant No.1 / Accused No.4,
Sri.Sathyanarayana S Chalke, learned counsel for
appellant Nos.2 to 4 / Accused Nos.5, 6 and 7, Shri M
Devaraja, learned counsel for appellant Nos.5 and 6 /
Accused Nos.9 and 10 and Sri.Vishnu Murthy, learned
counsel for appellant No.7 / Accused No.11.
In respect of the appeal in Crl.A.No.118/2021, we
have heard the arguments of the learned Senior Counsel
Shri B.V. Acharya who had argued for
Sri.Vishnumurthy, the counsel on record for appellant
Nos.1 to 3 / Accused Nos.1 to 3.
We have also heard the counter arguments
addressed extensively by the learned Spl.PP Sri.Ashok N
Naik for the respondent / State in these matters and
perused the common judgment of conviction rendered
by the Trial Court in S.C.No.428/2013 dated
28.10.2020 inclusive of the evidence of PW-1 to PW-90,
Exhibits P1 to P401, Material Objects namely MO-1 to
MO-54 inclusive of Exhibits C1 and C2 and Exhibits D1
and D2.
7. The factual matrix of these appeals are as
under:
It transpires from the case of the prosecution that
as on 20.11.2012, a case in Cr.No.238/2012 was
registered on the complaint filed by one Uma Devi /
PW-1, before the Chamarajpet Police as per Exhibit P1.
Based upon her complaint, the said case in
Cr.No.238/2012 was registered against unknown
persons for offences punishable under Section 302 read
with Section 34 of the IPC, 1860. In her complaint, the
informant Uma Devi had stated that she was residing
along with her husband Lingaraju and also her children
and her mother at B.M.K. Layout, Bengaluru. Lingaraju
was doing real estate business. In addition to that, he
was also an Editor of a newspaper "Maha Prachanda".
On 20.11.2012, at around 6.45 a.m., her husband
deceased Lingaraju was drawing water from the public
tap near their house and his wife Smt. Uma Devi also
went to fetch water from the public tap. In the
meanwhile, three unknown persons had come running
holding sickles and knife, who are said to have
assaulted her husband Lingaraju with the aforesaid
weapons. When she tried to rescue her husband from
their clutches, she was also chased by the said
unknown persons. When she came back, she found
that three persons had assaulted her husband
Lingaraju and done him to death. They had fled away
from there towards Valmiki Nagar. It is further alleged
that she can identify the assailants. Further, she has
stated that she suspected the involvement of
Govindaraju who is arraigned as Accused No.8 in the
murder of her husband as he had a grinding axe against
her husband suspecting that Lingaraju was responsible
for the raid conducted by the Lokayuktha police on his
house. It is further alleged that her husband was also
called on his mobile and was threatened, in respect of
which she had suspected the role of Govindaraju.
Hence, she had sought for initiation of criminal case
against the offenders. Based upon her complaint,
criminal law was set into motion by registering a case in
Cr.No.238/2012 by recording an FIR.
8. Subsequent to registration of the crime, the
Investigating Agency had taken up the case for
investigation and thoroughly investigated the case and
laid a charge-sheet against the accused persons, 12 in
number, before the Committal Court wherein 137
witnesses were cited in the charge-sheet.
9. Subsequent to filing of a charge-sheet by the
I.O., the Committal Court passed an order under
Section 209 of the Cr.P.C. committing the case to the
Court of Sessions for trial in respect of the offences
punishable under Sections 120B, 109, 143, 147, 148,
150, 506B and 302 read with Section 149 of the IPC,
1860. Thereafter, the Trial Court heard the arguments
of the learned Spl. Public Prosecutor and so also the
arguments advanced by the learned counsel for the
accused and on finding a prima facie case against them,
framed charges against the accused for the aforesaid
offences. However, the accused persons did not plead
guilty but claimed to be tried. Accordingly, plea of the
accused were recorded separately.
10. Subsequent to framing of charges against the
accused, the prosecution had let in evidence by
subjecting to examination PW-1 to PW-90 and got
marked several documents at Exhibits P1 to P401 and
marked material objects namely MO-1 to MO-54. On
the part of the defence side, it got marked Exhibits D1
and D2 and also got marked Exhibits C1 and C2.
Subsequent to closure of the evidence on the part of the
prosecution, the accused were subjected to examination
as contemplated under Section 313 of the Cr.P.C. for
enabling them to answer as regards the incriminating
evidence appearing against them. But the accused had
denied the truth of the evidence of the prosecution
witnesses and they did not come forward to adduce any
defence evidence as contemplated under Section 233
Cr.P.C. On closure of the entire evidence on the part of
the prosecution as well as the defence side, the Trial
Court had heard the arguments advanced by the
learned Spl. PP and so also the counter arguments
advanced by the learned Defence counsel respectively.
The Trial Court on appreciating the evidence of
witnesses PW-1 to PW-90 including the documents for
the prosecution at Exhibits P1 to P401 including the
list of documents at Exhibits C1, C2, D1 and D2
exhibited for the accused and on an examination of the
material objects marked namely MO-1 to MO-54,
proceeded to convict the accused / appellants and
sentenced them to undergo imprisonment for the
offences as reflected in the operative portion of the
order.
11. PW-1 / Uma Devi, is none other than the wife
of the deceased Lingaraju. She had given her statement
under Section 164 Cr.P.C. She is also a panch witness
to the spot mahazar at Exhibit P2, to the seizure
mahazar for seizure of weapons in the spot, panch
witness to the seizure of cloths of herself and her son
Karthik and she had also participated in the Test
Identification Parade and she is also a panch witness to
the photo identification of the accused persons.
12. PW-2 / Karthik is none other than the son of
the deceased and PW-1 / Uma Devi. PW-2 is an alleged
eye-witness and panch witness to the inquest at Exhibit
P-73. He has stated in his evidence that he knew
Accused Nos.8 and 12 and heard the news of the death
of his father telecasted in many T.V channels.
13. PW-3 / Neeru was working as an Assistant
Director, Cyber and Audio Video Forensic Truth Lab.
She has stated that the hard disk was received at Truth
Lab requesting her to examine the videos in the CCTV,
DVR concerning this case and also requesting for facial
comparison. Further, an envelope containing 7
photographs of suspected persons and the hard disk
was sent to PW-3 by the I.O. being the Dy.SP., Narcotic
Drug Cell, CID, Bengaluru. The said PW-3 / Neeru, on
comparing the faces of the persons seen in the video
files with the seven photographs of the suspects using
morphological and anthropometric analysis, found that
5 faces seen in video were matching with 5 suspects
namely Accused Nos.1 to 5.
14. PW-4 / Arun is said to be the eye-witness to
the alleged crime. He has stated that he knew Accused
Nos.8 and 12.
15. PW-5 / Lokesh and PW-6 / Renuka Aradhya
are said to be eye-witnesses to the incident narrated in
the complaint at Exhibit P1 who had given their
statements as per Exhibits P85 to 87 and 88 to 90
respectively.
16. PW-7 / Prakash had given his statement at
Exhibit P92 as regards criminal conspiracy and he has
stated that he knew Accused Nos.8 and 12.
17. PW-8 / Arjun being the son of the deceased
and PW-1 / Uma Devi had given statement as per
Exhibit P12 as regards motive factor.
18. PW-9 / Balakrishna had given statement as
per Exhibit P94 as regards motive and seizure of mobile
at the instance of Accused No.8 and had identified
Accused Nos.8 and 12.
19. PW-10 / Pratap had given his statement as per
Exhibit P95 relating to the place of conspiracy.
20. PW-11 / Chandre Gowda had given his
statement as per Exhibit P96 and PW-12 /
Chikkamadegowda had given his statement as per
Exhibit P97 as regards motive factor.
21. PW-13 / Ramesh was working as an In-charge
Manager of Bengaluru City Co-operative Bank. He had
stated that Accused No.8 / Govindaraju was one of the
Directors of the said bank. He has further stated that
one Revanna and Hemanth had borrowed
Rs.10,00,000/- gold loan each from the said bank. One
Lakshminarayana had sanctioned the said loan after
pledging 500 grams of gold.
22. PW-14 / Lakshminarayana also has spoken on
the same lines as that of PW-13 / Ramesh.
23. PW-15 / Revanna is the brother of Accused
No.12. He has stated that Accused No.12 and Accused
No.8, himself and his son have borrowed a loan of Rs.10
lakh each for construction of house, by pledging gold
weighing 1 kg and 50 grams as security.
24. PW-16 / L. Krishnamurthy is alleged to be the
panch witness to the seizure of mobile at the instance of
Accused No.12.
25. PW-17 / Lokesh is also a panch witness who
has stated about the place of conspiracy i.e., Ranganath
Hotel.
26. PW-18 / Nagaraj was an employee on daily
wage basis in Gopinatham Mistry Trial Camp who had
stated that on 20.11.2012 at about 10.00 p.m., 10
persons had come near the Dormitory in Tata Sumo
white colour vehicle and stayed in the dormitory and he
gave the room for rent of Rs.400/- each.
27. PW-19 / Soundaraj was also an employee in
the said Dormitory who was working as a cook in the
said camp. He had stated that 8 male members and 2
female members had come in a Tata Sumo vehicle and
stayed in the room and he had given them the room key
and went to his house.
28. PW-20 / Sumitra was the Manager of the
Bengaluru City Co-operative Bank who had identified
the cash bundles which are marked as MO-25 to MO-
28.
29. PW-21 / Nagaraj had given his statement to
the I.O. as per Exhibit P-112 and stated that he knew
Accused Nos.8 and 12.
30. PW-22 / N.K. Lakshman is the Notary who had
stated that he knew one Druvakumar Advocate and he
had identified the signature of the deceased on the
notarized Affidavit of stamp paper of Rs.20/- which is
marked as Exhibit P26.
31. PW-23 / Chennakeshava has stated in his
evidence that he knew Accused No.8 and that he had
undertaken catering work in respect of the marriage of
daughter of Accused No.8. PW-23 had stated that he
received Rs.15 lakhs as advance for the said catering
work and also that Accused No.8 had attended the
wedding of his daughter from judicial custody.
32. PW-24 / Shivakumar had also jointly worked
along with PW-23 as a contractor of catering work.
33. PW-25 / K. Boraiah is the one who had lodged
a complaint as against the deceased Lingaraju. The
said PW-25 had stated that he and others were running
Power Looms at Bhakthamarkandaiah Layout and
Lingaraju was opposing them in this regard, due to
which PW-25 had lodged a complaint against Lingaraju.
34. PW-26 / L. Gopal is said to have lodged a
complaint before the BBMP against the deceased
Lingaraju regarding encroachment of lake.
35. PW-27 / Bomma Linga and PW-28 / Ravi,
both had stated that Accused Nos.1 to 4 had concealed
their clothes near the dhaba.
36. PW-29 / Chand Pasha had stated in his
evidence that appellants / Accused Nos.1 to 3 had
purchased six T-shirts, 3 pants and one handkerchief
from him.
37. PW-30 / Beluraiah being the driver of the Tata
Sumo vehicle bearing No.KA-41/3600 and also a panch
witness to the seizure of the said Tata sumo vehicle.
38. PW-31 / Syed Ali had stated that he had seen
the bloodstained cloths of the appellants who had gone
to Hoganaikal Falls along with other co-accused
persons.
39. PW-32 / Prasanna is alleged to be the panch
witness to the inquest mahazar, spot mahazar, seizure
of knife cover, seizure of mobile at the instance of
Accused Nos.6 and 7, seizure of another mobile at the
instance of Accused Nos.4 and 5 and to the seizure of
bloodstained mud and sample mud in the place of
occurrence which are marked as Exhibits P2, P127 to
P130 respectively.
40. PW-33 / M. Deepak had given statement as
regards seizure of nighty, nikker, auto, two choppers,
Rs.15,000/- at the instance of Accused No.7 and a
panch witness to the seizure of motorcycle and
Rs.1,000/- at the instance of Accused No.6, which are
marked as Exhibits P17, P131 and P132.
41. PW-34 / Smt. Laxmi is the mother of Appellant
No.3 / Accused No.3 who has given statement that her
son, namely Accused No.3 had given her Rs.10,000/- as
on 21.11.2012.
42. PW-35 / Manikantan is the son of Accused
No.9 had stated that the mobile used by Accused No.9
belonged to him.
43. PW-36 / Uttham Kumar is a panch witness to
the spot mahazar at Exhibit P2 and seizure of knife
cover.
44. PW-37 / Shiva Prasad is said to be a panch
witness to six mahazars namely, seizure of Rs.1,000/-
at the instance of Accused No.5, seizure of chopper at
the instance of Accused No.3, seizure at the instance of
Accused No.2, to the seizure of three shirts at the
instance of Accused Nos.1 to 3, to the seizure of
Rs.1,25,000/- at the instance of Accused No.4, seizure
of two mobiles and Rs.5,000/- at the instance of
Accused No.10, which mahazars were marked as
Exhibits P147 to P152.
45. PW-38 / Ramesh Y had given his statement as
per PW-27.
46. PW-39 / S. Shankar who was a panch witness
to the seizure of the Tata Sumo, seizure of Rs.7,000/- at
the instance of Accused No.1 marked as Exhibit P156.
47. PW-40 / Keerthi has stated as per the evidence
of PW-39 / Shankar.
48. PW-41 / Pavan Kumar is a panch witness to
the search of the house of Accused No.8 and panch
witness to the seizure of mobile at the instance of
Accused No.1.
49. PW-42 / Saravana is a panch witness to the
seizure of two mobiles at the instance of Accused No.12
which is marked at Exhibit P-161.
50. PW-43 / Kondaiah is a panch witness to the
Palace Lodge at Ramanagar Town, which mahazar is
marked as Exhibit P-163.
51. PW-44 has also spoken on the same lines as of
PW-43, who is also said to have turned hostile. PW-45 /
Dr. J. Kantharaju of Victoria Hospital has certified the
blood group of the deceased to be O+ve.
52. PW-46 / Dr. Pradeep Kumar is the Doctor who
had held autopsy on the dead body of Lingaraju and
certified few injuries which were found on the dead body
of the deceased.
53. PW-47 / Shivaraj is a panch witness to the
seizure of mobile in the house of Accused No.8, which
mahazar is marked as Exhibit P-159.
54. PW-48 / C.M. Sathish is a panch witness to
the seizure of mobile at the instance of Accused No.12,
which mahazar is marked as Exhibit P-106.
55. PW-49 / Shiva Kumar @ Kumar is a witness
who has spoken in line with the evidence of PW-48.
56. PW-50 / K.R. Ashok is a panch witness to the
seizure of marriage invitation to the daughter of Accused
Nos.8 and 12 and also a panch witness to the photos of
Accused Nos.8 and 9 and a panch witness for receiving
mobile number from PW-52 / C. Ramaiah.
57. PW-51 / Venkata Malavaiah is a Junior
Engineer of PWD Department who had prepared the
spot sketch which is marked as Exhibit P-178.
58. PW-52 / R. Suma is the Taluk Executive
Magistrate who has stated that as on 26.12.2012 she
received information to conduct the TIP in
Cr.No.238/2012 of Chamarajapet P.S. As per the said
directions, she is said to have conducted TIP on
07.01.2013 in respect of Rangaswamy, Shankara,
Raghavendra, Chandra, Shankara @ Gunda and Velu.
Thereafter, PW-1 and PW-2 were secured and they are
said to have identified three accused persons by name
Raghavendra, Chandra and Shankara @ Gunda.
59. PW-53 / Malathi is the FSL Scientific Officer
who had stated that as on 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 the Police
Inspector and an I.O. in part who is said to have
collected the CDRs through e-main in respect of
Cr.No.238/2012 of Chamarajpet P.S.
61. PW-55 / Uma Devi is the sister of Accused
No.1. The said accused is said to have used the mobile
of his sister, namely PW-55.
62. PW-56 / Partha Sarathy is a panch witness to
the seizure of mobile said to have been used by Accused
No.1.
63. PW-57 / Tarun Kumar is from the Mines and
Geology Department who was a panch witness to the
Photo Test Identification in respect of Accused Nos.5, 9,
10 and 12.
64. PW-58 / Ganesh is a panch witness to the
seizure of mobile said to have been used by Accused
No.1, which mahazar is marked as Exhibit P-90.
65. PW-59 / B.S. Siddaraju is a panch witness to
the place of conspiracy at Ranganatha Hotel, Mysuru.
66. PW-60 / Bala Sundaram was said to be the
owner of the auto rickshaw bearing No.KA-05/AA-2742
who had sold the said autorickshaw to one Dhananjaya
and the said Dhananjaya had sold it to one
Shivashankar in the year 2013 wherein the
Chamarajapete Police seized the said autorickshaw.
67. PW-61 / Sandeep Raj is a panch witness to the
seizure of mobile photos taken from the mobile of
Ramaiah, the father of Accused No.2.
68. PW-62 / Dilip Kumar is the one who had paid
a loan of Rs.50,000/- to buy the autorickshaw.
69. PW-63 / N. Vijay is the owner of Zen car
bearing No.KA-04/MA-0224 who had stated that
Accused No.4 had taken the said car.
70. PW-64 / Ramesh N.R. is the panch witness to
the seizure of mobile belonging to Accused Nos.5, 9 and
12.
71. PW-65 / D. Ramakrishna Rao is the Assistant
Revenue Inspector who issued residential certification of
Accused No.9.
72. PW-66 / Dhananjay is the Assistant Revenue
Inspector who issued residential certificate in respect of
Accused No.2.
73. PW-67 / Smt. Uma is the Assistant Revenue
Inspector who had given the details of the hotel.
74. PW-68 / Smt. Chandramma is the mother of
Accused No.2 who had stated that her son Shankar had
called her through mobile.
75. PW-69 / Ashwini, is the Dy.S.P., Lokayuktha
who has spoken relating to the Lokayuktha case in
respect of Accused Nos.8 and 12.
76. PW-70 / Byrojirao is the Head Constable who
has stated that he had carried the FIR to the Court on
20.11.2012.
77. PW-71 / K. Rajesh is the Nodal Officer of Idea
Cellular Limited who has stated that he had given the
CDR, customer application form and location details of
the customers to Manoj N. Huvale, Police Inspector, CID
as per his request.
78. PW-72 / S.N. Murthy is the Nodal Officer of
Vodafone Company who had stated that as per the
requisition given by Shankarpuram Police, he had
provided the call details of mobile Nos.9742774249,
9986374834 and 9742867217 through e-mail, as per
Exhibit P-240.
79. PW-73 / Stanley is the Nodal Officer of Bharti
Airtel who had stated that as on 30.01.2013, the CID
police had given requisition through e-mail to provide
call details of mobile numbers namely 9008687866,
9632933599, 9738606022, 9972133896, 9980046187,
9591717159 and 9945850261 and customers'
application forms. Accordingly, PW-73 is said to have
provided all the details as per Exhibit P-248.
80. PW-74 / Rathnakar Nayak is a Nodal Officer of
BSNL Company who has stated that as on 28.01.2013,
Police Inspector, CID had given requisition letter to
provide the call details of mobile no.9449815395 for the
period 01.08.2012 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 took photos of
place of occurrence, knife, knife cover.
82. 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.
83. 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.
84. PW-78 / Eshwarappa had brought the post-
mortem report and cloths of the deceased from Victoria
Hospital and had given it to the I.O.
85. PW-79 / Balappa Nasannavar is the Police
Constable who brought the CD from T.V. channel office
and had given it to the I.O.
86. PW-80 / Venkateshappa is the Police Inspector
who, on 20.11.2012 at about 8.00 a.m. had gone to the
place of incident as per the instructions of Inspector
Shivamallaiah. Police Inspector took shara on the
complaint given by Smt. Uma Devi and instructed PW-
80 to register the case. Accordingly, PW-80 went to the
Police Station and had registered the case in
Cr.No.238/2012 as per Exhibit P1. The FIR is marked
as Exhibit P-300. He had visited Ramanagara Palace
Lodge along with Accused No.10 and had drawn the
mahazar which is marked as Exhibit P-163. He also
went to Gopinatham Mistry Trial Camp along with
Accused No.10 where Accused No.10 had showed the
place where they stayed there on 20.11.2012 and
thereafter, PW-80 recorded the statements of Nagaraju,
Assistant Manager of Mistry Trial Camp of Soundara
Raju, care taker of the said camp. On 12.12.2012, he
took Y.S. Adinarayana, CCTV Technician and his staff
visited Ramanagara Palace Lodge and secured panchas
and saw the CCTV clipping and as on 19.11.2012 he
saw the footage of Accused Nos.1 to 6 entering the lodge
and collected the hard disk in respect of CCTV and DVR
from the technician.
87. PW-81 / Shivamalavaiah, Police Inspector had
stated that on receiving the information of death, he
visited the place at 7.15 a.m. wherein the police staff
were there and on seeing the dead body, he had
collected the complaint from PW-1 / Uma Devi. PW-81
had secured dog squad, fingerprint experts and handed
over the complaint to the Police Inspector and directed
him to register the case. He had recorded statement of
witnesses, drawn the inquest mahazar, seized the
dragger cover at the place of occurrence and sent the
dead body to Victoria Hospital. Further, he had taken
photos on the spot, had prepared the sketch, recorded
the statements of eye-witnesses, on the same day
received the bloodstained clothes of the deceased, wife
and his son Karthik and seized the same. He had
arrested Accused Nos.6 and 7 and seized two mobiles
from Accused No.7 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 seized
one chopper and a shirt. Further, he went along with
Accused No.5 to his house and seized Rs.1,00,000/-
from his house. After investigating the case, PW-81 /
Shivamalavaiah filed the charge sheet against Accused
Nos.1 to 7 for offences punishable under Sections 109,
120B, 143, 147, 148, 150, 302, 506-B read with Section
149 of the IPC.
88. PW-82 / Narsaiah, Manager of Palace Lodge of
Ramanagara had stated that 7 persons had come to
their lodge from Bengaluru in a white Zen car at about
2.30 p.m. and they booked room nos.16 and 17 and
stayed therein.
89. PW-83 / Ramaiah is said to be the supplier in
the said Palace Lodge, Ramanagara who has stated that
he had supplied drinks and non-vegetarian food to the
occupants of the room nos.16 and 17.
90. PW-84 / S. Adinarayana is the CCTV Servicing
Technician who has stated that about 7 to 8 years back,
the Chamarajapet Police had taken him to Ramanagara
Palace Lodge and on instructions of the police, he had
opened the DVR and removed its hard disk and had
handed over the same to the police.
91. PW-85 / Umesh is a panch witness to the
seizure of hard disk at Palace Lodge, Ramanagara.
92. PW-86 / Shivanna is the room boy of Palace
Lodge, Ramanagara.
93. PW-87 / Druvakumar is the one who had
identified the signatures of the deceased Lingaraju in an
affidavit and also stated that there was a rivalry between
deceased and Accused No.8.
94. PW-88 / G.C. Manjunath, is the Police
Inspector in CID Office and is an I.O. in part. He has
stated that on 08.02.2013, PW-90 K. Tilak Chandra
issued a memo to conduct photo identification parade of
appellants and others and sent the photographs of five
accused persons with a covering letter containing 30
photogrphs.
95. 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.
96. PW-90 / K. Tilak Chandra is also an I.O. in
part who was appointed as I.O. in the Special
Investigating Team as on 18.12.2012, after 28 days from
the date of the crime. Major portion of the investigation
was over even prior to his arrival in Cr.No.238/2012.
He had sent requisition to the Jurisdictional Magistrate
to record the statements of PW-1 and PW-2 under
Section 164 of the Cr.P.C. Further, on 27.12.2012 he
had sent a requisition of the Medical Officer of Victoria
Hospital to examine the weapons and give an opinion.
On 29.12.2012, he wrote a letter to the Director of Truth
Lab, Bengaluru to examine the hard disk said to have
been seized at Palace Lodge, Ramanagara. He had
collected the revenue documents in respect of
Ranganatha Hotel to know the name of the owner.
These are all the evidence let in by the prosecution to
prove the guilt against the accused whereby the Trial
Court had appreciated the evidence of those witnesses
in respect of the role of each one of the accused and
arrived at a conclusion that the prosecution has proved
the guilt against the accused relating to the motive
factor, conspiratorial meetings to do away with the life of
deceased Lingappa who is none other than the husband
of PW-1 / Uma Devi. Though several witnesses were
subjected to examination, the prosecution witnesses
have 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 the offences reflected in
the operative portion of the order in S.C.No.428/2013. It
is this common judgment which is under challenge in
these appeals by urging various grounds.
97. Learned Senior Counsel Shri B.V. Acharya for
Accused Nos.1 to 3 / appellants in Crl.A.No.118/2021
has contended that PW-1 / Uma Devi is the
complainant who had filed her complaint as per Exhibit
P1. She being an eye-witness to the incident narrated
in her complaint, had given a statement under Section
164 of the Cr.P.C. before the Magistrate having
jurisdiction to deal the matters. It is further contended
that PW-1 / Uma Devi is the panch witness relating to
drawing of the spot mahazar and so also a panch
witness to the seizure of weapons which were found in
the scene of crime and a panch witness to the seizure of
cloths of herself and her son Karthik. PW-1 and PW-2
had participated in the Test Identification Parade and is
also a panch witness to the photo identification of
accused persons who are said to have committed the
murder of her husband namely deceased Lingaraju who
was an RTI Activist and also an Editor of
"Mahaprachanda" newspaper. But before he became an
Editor of "Mahaprachanda" local newspaper, he was
working as a 'D' Group employee in Canara Bank.
However, he resigned from his services as 'D' Group
employee of Bank and then he was an RTI Activist and
press reporter so also Editor of "Mahaprachanda" local
newspaper. This is the nutshell in her evidence. But in
the cross-examination, she has given a go-by to the
versions. Otherwise to say, she has given a go-by to the
contents of the complaint at Exhibit P1 and so also the
contents in her statements made under the relevant
provisions of Section 164 of the Cr.P.C. in addition to
the contents of the seizure mahazar said to be
conducted by the I.O. during the course of investigation.
Apart from that, she has stated that she had not
identified any of the accused before the Court. Even she
has stated that she did not participate in the TIP
conducted by the responsible Taluk Executive
Magistrate and that she has not seen the appellants /
Accused Nos.1 to 3 in the place of occurrence or
elsewhere. Therefore, her evidence has no legal sanctity
or value under the relevant provisions of the Indian
Evidence Act relating to appreciation of evidence to
prove the guilt against the accused which is an
important domain vested with the prosecution to prove
the guilt of the accused as regards the charges framed
against the accused persons by the Trial Court.
98. Learned counsel Sri Vishnumurthy for
Accused Nos.1 to 3 has submitted synopsis and also
taken contentions by referring to the evidence of each
one of the witness and so also the role of accused. It is
contended that the incident took place on 20.11.2012 at
about 6.45 a.m. to 7 a.m. Thereafter, PW.81 - I.O
visited the spot around 7.15 a.m. and the case was
registered by PSI - PW.80 around 8.10 a.m. in Crime
No.238/2012 on the basis of complaint at Ex.P1 lodged
by PW.1 at the spot for offence under Section 302 r/w
34 of IPC against three unknown persons and
Govindaraju as per Ex.P.300. The inquest was held
9.45 a.m to 12.15 p.m. as per Ex.P.12 by PW.81. The
spot mahazar as per Ex.P2 was dawn on 20.11.2012 in
the presence of PWs.1 and 32 but they have not
supported the case of the prosecution. Near the dead
body, 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 PW.1 and 2 u/s 164 of Cr.P.C.
• Test identification parade
• Photo identification parade
• CCTV footage
• Visiting and staying in Mistri trial camp,
Gopinatham village.
• Blood stains in the clothes
• Conspiracy and motive
99. As regards eye witnesses PW.1 - Umadevi, PW.2 -
Karthick, PW.4 - Arun Kumar, PW.5 - S.G.Lokesh, PW.6 -
Renukaradhya were examined on the part of prosecution
but they did not support the case of prosecution. Further,
it is contended that whatever the mobile phones and sim
cards seized by the police in respect of these appellants
does not belong to them as the same does not stand in
their names. There is no evidence placed by the
prosecution to show that these accused persons had used
the said mobile phones or SIM cards. Mere call details are
not sufficient to establish that they conspired each other
for committal of the offence unless there is specific
conversation between them and there is no evidence for
the same.
100. It is the further contention of learned cousnel
that a sum of Rs.7,000/- was seized from accused No.1.
The voluntary statement of accused No.1 was recorded on
22.11.2012 as per Ex.P315, on 25.11.2012 as per Mahazar
Ex.P.149, MO.33 - full arm shirt was seized in the
presence of PW.37 and 38, but they did not support the
case of the prosecution. Further, the statement of accused
No.1 was recorded and seized Rs.7,000/- as per MO.51
under Ex.P156 in the presence of PWs.39 and 40. But
they did not support the case of prosecution.
101. Accused No.2 was arrested on 22.11.2012 and
his voluntary statement was recorded as per Ex.P314 and
on 25.11.2012, one chopper - MO.29 and white colored
full arm shirt - MO.32 were seized under mahazar Ex.P148
in the presence of PWs.37 and 38 but however, they did
not support the case of prosecution.
102. Accused No.3 was arrested on 22.11.2012 and
his voluntary was recorded as per Ex.P313 and on
25.11.2012 seized one chopper - MO.30 and one grey
colored full arm shirt - MO.31 was seized under the
mahazar Ex.P147 in the presence of PWs.37 and 38. But
however, they did not support the case of the prosecution.
103. It is further contended that there is no
incriminating evidence appearing against these
appellants / Accused Nos.1 to 3. But based upon the
evidence facilitated by the prosecution and even though
there was no cogent evidence rendered by the
prosecution to prove the guilt against the accused, the
Trial Court rendered a conviction judgment relating to
these accused Nos.1, 2 and 3. The Trial Court has
committed a grave error in observing that nothing is
elicited in the cross-examination and there is no
incriminating evidence appearing against these accused
persons though they stood for cross-examination.
Nothing but the precious time of the Court has been
taken away by recording the examination-in-chief even
though this witness has given a go-by to the statements
given by her under Section 164 Cr.P.C and the
complaint at Exhibit P1 given by her relating to the
death of her husband Lingaraju.
104. PW-2 / Karthik who is the son of the
deceased Lingaraju was also the son of PW-1 / Uma
Devi wherein he is also an eye-witness to the incident
and so also is a panch witness to the inquest mahazar
held over the dead body at Exhibit P73. 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 who are appellants in this appeal. No
incriminating evidence or circumstantial evidence has
been stated against these accused persons. Therefore, it
is not warranted to dwell in detail about the evidence of
this witness PW-2 / Karthik who is the son of the
deceased Lingaraju.
105. It is further contended that the Trial Court
has committed a grave error in relying upon the
evidence of PW-3 / Neeru by avocation as an Assistant
Director, Cyber and Audio Forensic Truth Lab. She has
stated in her evidence on the part of the prosecution
that the hard disk was received as on 02.01.2013 at
Truth Lab requesting her to examine the videos in the
CCTV, DVR concerning the case and requesting for
facial comparison. The same was sent by the I.O.
namely Dy.S.P. Narcotic Drug Cell, CID, Bengaluru. On
comparing the faces using morphological and
anthropometric analysis, she found that 5 images seen
in the video were matching with 5 suspects namely
Accused Nos.1 to 5. However, in her cross-examination,
she has stated that she is not competent to declare
herself as an expert to analyze and give evidence on
digital documents under the IT Act and further she has
also admitted that with the help of video editing
technology, currently available professional can easily
remove any object from a video sequence and insert an
object from a different video source or even insert an
object created by computer graphic software. Further
she has stated that she cannot say the authenticity of
the video recordings whether they were edited or
unedited since the hard disk was not wrapped in an
antistatic cover. Therefore, she has stated that the
chances of the same getting infected cannot be ruled
out. It is hence contended that the evidence of PW-3 is
also not reliable and acceptable and therefore, requires
to be rejected in toto.
106. It is further contended that PW-4 / Arun has
also not supported the case of the prosecution and has
denied his statement given before the police as per
Exhibit P-84. Further, PW-5 / Lokesh and PW-6 /
Renuka Aradhya being eye-witnesses to the occurrence,
have denied the statements given by them as per
Exhibits P85 to 87 and 88 to 90 and have turned hostile
to the case of the prosecution. Hence, it is contended
that their evidence does not support the case of the
prosecution.
107. Further, PW-7 / Prakash has denied the
statements made by him as per Exhibit P92 and hence
his evidence is also not helpful to the case of the
prosecution. PW-8 / Arjun is the son of deceased and
PW-1. He has denied the statement made by him as per
Exhibit P-12 and has turned hostile to the case of the
prosecution. Further, PW-9 / Balakrishna who had
given his statement as per Exhibit P94, has denied the
same and has resiled from his statements and has not
supported the case of the prosecution except identifying
Accused Nos.8 and 12.
108. PW-10 / Pratap who was supposed to speak
about the place of conspiracy has not stated anything
about the same and has turned hostile to his
statements. Hence, it is contended that his evidence is
also of no use to the case of the prosecution. PW-11 /
Chandre Gowda and PW-12 / Chikkamadegowda have
also denied their statements made as regards motive
factor and have turned hostile to the case of the
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 produced any incriminating evidence
against the appellants / accused in order to convict
them. Hence, his evidence is also of no use to the case
of the prosecution.
110. Evidence of PW-14 / Lakshminarayana as
well as the evidence of PW-13 / Ramesh which are on
the same lines, are also in no way useful to the case of
the prosecution. Further, the evidence of PW-15 /
Revanna being the brother of Accused No.12 is also in
no way helpful to the case of the prosecution. PW-16 /
L. Krishnamurthy, a panch witness to the seizure of
mobile at the instance of Accused No.12 has denied the
same. Further, PW-17 / Lokesh being a panch witness
to the place of conspiracy in Ranganath Hotel has also
turned hostile to the same. Hence, it is contended that
their evidence also do not support the case of the
prosecution.
111. It is further contended that the learned
Sessions Judge had committed a grave error in relying
upon the evidence of PW-18 / Nagaraj, a daily wages
employee in Gopinatham Mistry Trial Camp. Though he
had stated that on 20.11.2012 at about 10 p.m., 10
persons had come to the Dormitory in a Tata Sumo
white colour vehicle and stayed in the same for a rent of
Rs.400/- for each room, he has identified only Accused
No.10 / Jaheer and has not identified the appellants 1
to 3 and hence, his evidence also does not aid the case
of the prosecution.
112. PW-19 / Soundaraj, also an employee in the
said Dormitory who was working as a cook in the said
camp though had stated that 8 male members and 2
female members came in a Tata Sumo and stayed in the
room, he identified only Raghavendra / Accused No.3.
However, PW-19 was not subjected to TIP and also there
is an inordinate delay in recording his statement and
there is no document on record to show that Accused
No.3 had in fact stayed in the said dormitory.
Therefore, it is contended that the evidence of the said
witness is not helpful to the case of the prosecution.
113. PW-20 / Sumitra, Manager of Bangalore City
Co-op Bank though had identified cash bundles marked
as MO-25 to 28, there is no incriminating evidence
brought on record to prove the charges leveled against
the appellants. PW-21 / Nagaraj who had stated in his
evidence that he knew Accused Nos.8 and 12, has
admitted that he had not given any statement to the I.O.
as per Exhibit P-112 and has turned hostile to his
statements.
114. Further, PW-22 / N.K. Lakshman, Notary has
stated that he knew Druvakumar, Advocate and though
he had identified the signature of the deceased on the
notarized Affidavit which is marked as Exhibit P26,
however, there is no iota of evidence against the
appellants.
115. Though PW-23 / Chennakeshava has stated
that he knew Accused No.8 in view of the fact that he
had undertaken catering work in respect of the marriage
of the daughter of Accused No.8 and further that
Accused No.8 attended the marriage of daughter from
judicial custody, however, no incriminating evidence is
found against the appellants in order to convict the
accused persons. PW-24 / Shivakumar who had also
worked jointly with PW-23 as a contractor of catering
work, has also turned hostile and has not supported the
case of the prosecution.
116. PW-25 / K. Boraiah who lodged the
complaint against the 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 while convicting the accused persons.
117. PW-26 / L. Gopal had lodged a complaint
before the BBMP against the deceased regarding
encroachment of lake. He has stated that Accused
Nos.8 and 12 had advised the deceased not to quarrel
with each other. In his cross-examination, PW-26 has
admitted that deceased Lingaraju had lodged a false
complaint against power loom owners and has stated
that he was torturing the neighbours in that area, which
showed that there was a prior enmity between the
deceased and others. It also revealed that deceased had
many enemies in and around the society. However, the
said evidence of PW-26 has not been properly
appreciated by the Trial Court while convicting the
accused persons.
118. PW-27 / Bomma Linga who had stated in his
examination-in-chief that Accused Nos.1 to 4 had
concealed their clothes near the dhaba, in the cross-
examination has turned hostile to his statement.
Further, PW-28 / Ravi who has spoken on the same
lines as of PW-27, has also turned hostile to his
statement. PW-29 / Chand Pasha who had stated that
accused nos.1 to 3 had purchased six T-shirts, 3 pants
and one kerchief from him, has also turned hostile and
has not supported the case of the prosecution. PW-30 /
Beluraiah being the driver of Tata Sumo vehicle bearing
No.Ka-41/3600 and a panch witness to the seizure of
the said vehicle, has also turned hostile. Further, PW-
31 / Syed Ali who had stated that he saw the
bloodstained cloths of accused nos.1 to 3 and that he
went along with other co-accused persons to Hoganaikal
falls, has also denied his statements and has turned
hostile to the case of the prosecution.
119. PW-32 / Prasanna, a panch witness to the
inquest mahazar, spot mahazar, seizure of knife cover,
seizure of mobile at the instance of Accused Nos.6 and 7
and panch witness to the seizure of mobile at the
instance of Accused Nos.4 and 5 and panch witness to
the seizure of bloodstained mud and sample mud in the
place of occurrence which were marked as Exhibits P2,
P127 to P130, has also turned hostile. Hence, his
evidence is also of no use to the case of the prosecution.
120. PW-33 / M. Deepak who had spoken about
the seizure of nighty, nikker, auto, two choppers,
Rs.15,000/- at the instance of Accused No.7 and panch
witness to the seizure of motorcycle and Rs.1,000/- at
the instance of Accused No.6 which were marked as
Exhibits P17, 131 and 132, has also denied his
statements and has turned hostile to the case of the
prosecution.
121. PW-34 / Smt. Laxmi, mother of Accused No.3
who when subjected to examination had stated that
accused No.3 gave her Rs.10,000/- as on 21.11.2012,
has also turned hostile to her statement and has denied
that she has given any statement to the I.O.
122. PW-35 / Manikantan, son of Accused No.9
who had stated that the mobile used by Accused No.9
actually belonged to him, has also turned around and
has denied his statement. PW-36 / Uttham Kumar, a
panch witness to the spot mahazar at Exhibit P2 and
seizure of knife cover has also denied the same and has
turned hostile to the case of the prosecution. PW-37 /
Shiva Prasad, a panch witness to six mahazars namely
seizure of Rs.1,000/- at the instance of Accused No.5,
panch witness to seizure 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.10 which mahazars are marked as Exhibits
P-147 to 152, has also turned hostile to the case of the
prosecution.
123. PW-38 / Ramesh Y who has also spoken as
per PW-27 has also turned hostile to his statements.
PW-39 / S. Shankar, a panch witness of the seizure of
Tata Sumo, seizure of Rs.7,000/- at the instance of
accused No.1 as per Exhibit P-156, has also turned
hostile to the case of the prosecution. Further, PW-40 /
Keerthi who had given evidence on the same lines as per
PW-39 has also turned hostile to the case of the
prosecution.
124. It is further contended that PW-41 / Pavan
Kumar being a panch witness to the search of the house
of Accused No.8 and punch witness to the seizure of
mobile at the instance of Accused No.1. PW-42/
Saravana is alleged to be a panch witness to the seizure
of two mobiles at the instance of Accused No.12 which is
marked as Exhibit P-161. PW-43 / Kondaiah is a panch
witness to the Palace Lodge at Ramanagara Town, which
mahazar is marked as Exhibit P-143. PW-44 also has
spoken on the same lines as of PW-43. However, it is
contended that the evidence of the above witnesses
namely PW-41 to PW-44 is in no way helpful to the case
of the prosecution.
125. It is further contended that the Trial Court
has committed a grave error in relying upon the
evidence of PW-45 / Dr. J. Kantharaju, Victoria
Hospital, who has certified the blood group of the
deceased to be O+ve, which is in no way helpful to the
case of the prosecution, since the appellants are not at
all disputing the homicidal death of Lingaraju. PW-46 /
Dr. Pradeep Kumar is the Doctor who conducted
autopsy over the dead body of Lingaraju. However, the
evidence of this witness regarding injuries is
inconsistent with the weapons said to be seized by the
I.O. Hence, it is contended that the evidence of PW-46
requires to be rejected, in toto.
126. PW-47 / Shivaraj though a panch witness to
the seizure of mobile in the house of Accused No.8
namely Exhibit P-159, he has turned hostile to the said
seizure. PW-48 / C.M. Sathish though a panch witness
to the seizure of mobile at the instance of Accused No.12
namely Exhibit P-106, he has turned hostile to the said
seizure. PW-48 who has spoken on the same lines of
PW-48 as well, has turned hostile to his statements.
Hence, it is contended that the evidence of these
witnesses is in no way helpful to prove the charges
leveled against the appellants. PW-49 / Shiva Kumar @
Kumar who has spoken on the same lines as of PW-48
has also turned hostile to the case of the prosecution.
Hence, it is contended that the evidence of these
witnesses is in no way helpful to the case of the
prosecution to prove the charges leveled against the
appellants.
127. PW-50 K.R. Ashok, is a panch witness to the
seizure of marriage invitation of the daughter of Accused
Nos.8 and 12, panch witness to photos of Accused Nos.8
and 9, and panch witness for receiving the mobile
number from PW-52 / C. Ramaiah. However, there is
no incriminating evidence against the accused in order
to convict them. PW-51 / Venkata Malavaiah is the
Junior Engineer of the PWD Department who prepared
the spot sketch which is marked as Exhibit P-178.
However, he has not shown the places of the alleged
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 Magistrate who has stated that on 26.12.2012
she received the information to conduct the TIP in
Cr.No.238/2012 of Chamarajapet P.S. Accordingly, she
is said to have conducted TIP on 07.01.2013 in respect
of Rangaswamy, Shankara, Raghavendra, Chandra,
Shankara @ Gunda and Velu. Thereafter, witnesses
PW-1 / Umadevi and PW-2 / Karthik were secured and
they are said to have identified three accused persons
namely Raghavendra, Chandra and Shankara @ Gunda.
However, it is contended that there is an inordinate
delay in conducting the TIP. It is stated that prior to the
TIP, the accused persons were produced before the
Court without putting face mask and also their photos
were displayed in newspapers and also in television.
Therefore, it is contended that there is no legal sanctity
or value attached to the TIP and hence the evidence of
this witness is required to be rejected in toto.
129. It is further contended that the Trial Court
has committed a grave error in relying upon the
evidence of PW-53 / Malathi who is the FSL Scientific
Officer. She has deposed that as on 11.12.2012, she
received 15 materials in the laboratory and examined
the said materials. She has given her opinion as
follows:
1) Presence of blood detected in Article
Nos.1, 2, 5 to 15.
2) Presence of blood not detected in Article
Nos.4 and 3.
3) Blood clots in Item 3 was disintegrated
and hence their origin could not be
determined.
4) Items 1, 2, 5 to 15 were stained with
human blood.
5) Items 1, 5 to 15 were stained with "O"
blood group. The blood grouping of the
blood stains in item 2 would not be
determined as the results of the tests were
inconclusive.
After examination of the materials 1 to 15, they were
packed and sealed in the laboratory and were sent to
the police station. In this regard, she has given the
report which is marked as Exhibit P-182. Those
material objects include knives, chopper, nighty,
bloodstained mud, sample mud, underwear, grey colour
shirt, white colour shirt, checks shirts, white shirt. In
her cross-examination, she has admitted that she has
not given the blood group which is said to have been
found on material objects. It is contended that since the
other witnesses have not supported the case of the
prosecution, there is no legal value attached to the
evidence of the said witness PW-53.
130. PW-54 / Manoj M. Huvale is the Police
Inspector who is the I.O. in part who is said to have
collected the CDRs through e-mail in respect of Crime
No.238/2012 of Chamarajpet P.S. It pertained to
different companies. It is elicited from the cross-
examination 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 the seizure of
mobile said to be used by Appellant No.1. This witness
has also not supported the case of the prosecution.
Hence, it is contended that the evidence of these
witnesses is in no way helpful to prove the charges
against the accused persons.
132. PW-57 / Tarun Kumar is a witness from the
Mines and Geology Department. He is said to be a
panch witness to the Photo Test Identification in respect
of Accused Nos.5, 9, 10 and 12. He has admitted in his
examination that he had not applied leave to the office
at the time of drawing the mahazar and also had not
obtained permission from his higher officers. He has
further admitted that prior to TIP, photos of the accused
persons were displayed in newspapers, televisions and
also the accused were produced before the Court
without wearing face mask. It is therefore contended
that the photo TIP has no legal significance for
consideration in this matter.
133. PW-58 / Ganesh though was a panch witness
to the seizure mahazar at Exhibit P-90 in respect of
seizure of mobile used by Accused No.1, he has turned
hostile to the said seizure and hence his evidence also
does not help the case of the prosecution.
134. It is further contended that PW-59 / B.S.
Siddaraju, a panch witness to the place of conspiracy at
Ranganatha Hotel Mysore, has also resiled from the
contents of the mahazar. Further, the evidence of PW-
60 / Bala Sundaram who was the ex-owner of the auto
rickshaw No.KA-05/AA-2742 is to the effect that he sold
the said autorickshaw to one Shivashankar in the year
2013 and thereafter Chamarajpet Police had seized the
said auto. However, though he had signed and given
the documents to change the ownership of the vehicle,
the person who had purchased had not changed the
ownership of the autorickshaw to their name. Hence,
he was secured by the CID Police and he had identified
the auto permit. However, his evidence is also in no
way helpful to the case of the prosecution.
135. PW-61 / Sandeep Raj is a panch witness to
the seizure of mobile photos at Exhibit P-186 taken from
the mobile of Ramaiah, the father of Accused No.2. In
his cross-examination, PW-60 has stated he working in
Drugs Control office and that the police used to
summon him frequently to act as a panch witness in
several cases and that he is a stock witness to the
police. Hence, it is contended that his evidence also
would be of no significance to prove the guilt of the
accused.
136. PW-62 / Dilip Kumar has deposed to the
effect that he had provided a loan of Rs.50,000/- to buy
the autorickshaw bearing No.KA-05/AA-2742, but that
he did not know who was the owner of the said vehicle
and further that he had not seen any of the accused
persons in Court prior to giving evidence. Thus, it is
contended that his evidence would also not be helpful to
prove the guilt of the accused.
137. PW-63 / N. Vijay, being the owner of the Zen
car bearing No.KA-04/MA-0224 had given statement to
the effect that Accused No.4 had taken the said car from
him. However, he has denied the same in the cross-
examination 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 and has stated
that his residence was not in dispute. PW-67 / Uma,
Assistant Revenue Inspector had given the details of the
hotel but has not stated in respect of whose house the
certificate was issued. Hence, it is contended that her
evidence is in no way helpful to the case of the
prosecution to prove the guilt of the accused persons.
PW-68 / Smt. Chandramma being the mother of
Accused No.2 though had stated in her examination
that her son Shankar had called her through mobile,
however, she had denied it in her cross-examination
and has turned hostile to the case of the prosecution.
138. The evidence of PW-69 / Ashwini, Dy.S.P.,
Lokayuktha is only in respect of Accused Nos.8 and 12
in respect of the Lokayuktha case. However, no
evidence has been put forth against all the accused
persons and hence it is contended that her evidence
also would not aid the case of the prosecution.
139. PW-70 / Byrojirao, Head Constable had
stated that he had carried the FIR and handed it over to
the Jurisdictional Magistrate at 2.00 p.m. on
20.11.2012. However, it is stated that there is an
unexplained delay of 6 hours in reaching the FIR to the
said court. The distance between the police station and
Jurisdictional Magistrate being only 3 to 4 kms., it is
contended that the delay in reaching the FIR to the
Court is fatal to the case of the prosecution.
140. It is further contended that the Trial Court
has committed a grave error in relying upon the
evidence of PW-71 / K. Rajesh who is the Nodal Officer
of Idea Cellular Limited. He had stated in his
examination that he had handed over the CDR,
customer application form and location details of the
customers to Shri Manoj N. Huvale, Police Inspector,
CID as per his request. He had also given his
declaration certificate under Section 65(B) of the Indian
Evidence Act through e-mail which is marked as Exhibit
P-230. Further, the hard copy is marked as Exhibit P-
284. However, in his cross-examination, it is elicited
that in the said CDR, the tower location is not
mentioned and he had not mentioned the tower code
number and has also not collected mobile voice
recording. He has further stated that if the number is
not used for 90 days, the said mobile number will be
deactivated and allotted to another person. He has
further stated that required permission to share the
CDR details with the Police Inspector was not obtained.
Hence, it is contended that the procedure followed by
this witness is contrary to law and also to Section
65(B)(4) of the Indian Evidence Act and his evidence is
required to be discarded.
141. The further contention is that the learned
Sessions Judge had committed a grave error in relying
upon the evidence of PW-72 / S.N. Murthy, the Nodal
Officer of Vodafone Company. It is stated that on
22.01.2013, the Shankarapuram police had requested
PW-72 through e-mail to provide call details of mobile
nos.9742774249, 9986374834 and 9742867217 and
customer application forms. Thus, PW-72 is said to
have provided all the details through e-mail and also
declaration certificate under Section 65(B) of the Indian
Evidence Act. However, in his cross-examination, he
has admitted 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 against the law laid down by
the Supreme Court that prosecution must always collect
better evidence to establish the guilt of the accused.
142. It is further contended that PW-73 / Stanley,
Nodal Officer of Bharti Airtel has stated in his evidence
that 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. However, the cross-
examination of the said witness reveals that PW-73 had
not furnished the copy of the customers' applications
and call details. The said mobile numbers did not
belong to the accused persons and the details regarding
the owner of the mobile and as to who was the user of
the same has also not been stated by the said witness.
Hence, it is contended that the evidence of this witness
being vague and general, is not useful to the case of the
prosecution.
143. PW-74 / Rathnakar Nayak being the Nodal
Officer of BSNL Company 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.
However, from his cross-examination, it is elicited that
he did not know who had extracted the hard copy and
where and how. He also did not know as to when
Exhibit P-271 soft copy was retrieved and also did not
know as to which software he had used to retrieve the
details. Hence it is contended by the learned counsel
that the evidence of this witness is also required to be
rejected in toto.
144. PW-75 / Nagarajaiah is a panch witness to
name boards and photographer who took photos of
place of occurrence, knife, knife cover. He has stated
that he did not observe any foot prints on blood in the
place of occurrence. However, in his cross-examination,
he has admitted that when he went to the place of
occurrence at 7.00 a.m., the police were already present
there. Though as per the case of the prosecution the
complaint was lodged at 8.00 a.m. on 20.11/2012, the
circumstance that police were present even at 7.00 a.m.
indicates that investigation had started before lodging of
the complaint itself, which is contrary to Section 154 of
the Cr.P.C. Hence, it is contended that the investigation
having started even before registration of the complaint,
the entire trial is vitiated.
145. PW-76 / Gopalakrishna is the Head
Constable who has stated that as on 02.12.2012
he had arrested Jaheer and produced before the I.O.
along with his report as per Exhibit P-296. However, in
his cross-examination, he has admitted that the I.O.
had not given requisition to arrest him in writing and
I.O. had also not furnished the photograph of accused
persons. Hence it is contended that procedure aspects
have not been followed at the time of arrest of the
accused.
146. PW-77 / Muniraju is the Head Constable who
took the dead body from the place of occurrence 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 post-
mortem 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
and had given it to the I.O, which is not admissible in
law.
149. PW-80 / Venkateshappa is the Police
Inspector who, on 20.11.2012 at about 8.00 a.m. had
gone to the place of incident as per the instructions of
Inspector Shivamallaiah. Police Inspector took shara on
the complaint given by Smt. Uma Devi and instructed
PW-80 to register the case. Accordingly, PW-80 went to
the Police Station and had registered the case in
Cr.No.238/2012 as per Exhibit P1. The FIR is marked
as Exhibit P-300. He had visited Ramanagara Palace
Lodge along with Accused No.10 and had drawn the
mahazar which is marked as Exhibit P-163. He also
went to Gopinatham mistry along with Accused No.10
where Accused No.10 had showed the place where they
stayed there on 20.11.2012 and thereafter, PW-80
recorded the statements of Nagaraju, Assistant Manager
of Mistry Trial Camp of Soundara Raju, care taker of the
said camp. On 12.12.2012, he took Y.S. Adinarayana,
CCTV Technician and his staff visited Ramanagara
Palace Lodge and secured panchas and saw the CCTV
clipping and as on 19.11.2012 he saw the footage of
Accused Nos.1 to 6 entering the lodge and collected the
hard disk in respect of CCTV and DVR from the
technician and seized the same under a seizure
mahazar. He had recorded the statements of PWs 82,
83 and 86. However, in the cross-examination, it is
elicited that he did not obtain the signature of the
complainant in the FIR. He has stated that he did not
know at what time police received information regarding
the death of Lingaraju. He has further admitted that
soon after receipt of credible information regarding
cognizable offence, they have to make an entry in the
station house diary. When he reached the scene of
occurrence he saw that the police were enquiring
regarding the culprits and he has stated that he did not
know as to who wrote the complaint. Further he has
stated that identity of the culprits is not mentioned in
the complaint and none of the eye-witnesses had come
to the place of occurrence to give any information.
Further, that PW-80 had not collected photos to prove
that there was a CCTV in front of the aforesaid lodge.
Hence, it is contended that the oral evidence of this
witness PW-80 creates grave suspicion regarding the
genesis of the prosecution case.
150. PW-81 / Shivamalavaiah, Police Inspector
had stated that on receiving the information of death, he
visited the place at 7.15 a.m. wherein the police staff
were there and on seeing the dead body, he had
collected the complaint from PW-1 / Uma Devi. PW-81
had secured dog squad, fingerprint experts and handed
over the complaint to the Police Inspector and directed
him to register the case. He had recorded statement of
witnesses, drawn the inquest mahazar, seized the
dragger cover at the place of occurrence and sent the
dead body to Victoria Hospital. Further, he had taken
photos on the spot, had prepared the sketch, recorded
the statements of eye-witnesses, on the same day
received the bloodstained clothes of the deceased, wife
and his son Karthik and seized the same. He had
arrested Accused Nos.6 and 7 and seized two mobiles
from Accused No.7 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 seized
one chopper and a shirt. Further, he went along with
Accused No.5 to his house and seized Rs.1,00,000/-
from his house. After investigating the case, PW-81 /
Shivamalavaiah filed the charge sheet against Accused
Nos.1 to 7 for offences punishable under Sections 109,
120B, 143, 147, 148, 150, 302, 506-B read with Section
149 of the IPC.
151. However, in the cross-examination of PW-81,
it is elicited that dagger type chopper was recovered
from the spot between 12.20 to 1.20 p.m. Though PW-
81 had gone to the spot at 7.15 a.m., it is contended
that there is no reason as to why the said chopper was
not seized at the earliest point of time. It is further
contended that though finger print experts and dog
squad had come to the spot between 8.30 a.m.and 9.30
a.m., they did not take the finger prints on MO-3, which
showed that MO-3 was planted one. Further, MO-29
and MO-30 were not sent to FSL, which created more
doubt as regards the genesis of the prosecution case.
Though 40 to 50 persons were standing near the place
of occurrence when 7 to 8 police staff including the
Police Sub-Inspector and ASI visited the spot, it is not
known as to whey the police personnel had not recorded
the statements of any of the witnesses who were present
at the spot. Also they had not enquired about the
details of the weapons used by the assailants and
though so many people were present, none of them had
come forward to lodge a complaint till 7.45 a.m.
Further, the physical features of the assailants also has
not been mentioned and even there is no video or photo
to evidence the recovery of weapons. Further, there are
no names of the accused indicated in the FIR and also
no individual overt act has been attributed to any of the
accused persons. He had also admitted in his cross-
examination that three teams were formed to investigate
the case and the police had got desperate to arrest the
accused persons within 22.11.2012. He has also
admitted that the news of the incident was telecasted in
all the news channels and print media as on 20.11.2012
and 21.11.2012. He has further admitted that he had
not made any investigation as regards the mobile details
of MO-38, MO-39, MO-44 and MO-45 used by accused
persons. He has also admitted that none of the accused
persons were the RC owner of the vehicle KA-41-3600.
He has also admitted that accused persons were
produced in open court without mask wherein all public
present would have seen them. Hence, there is no legal
sanctity to the TIP conducted. Further, that the blood
in the spot and on the weapons was not properly
preserved and hence there were chances of
disintegration. Further, the bloodstained cloths were
also kept in the police station for 20 days 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 members and they are stock
witnesses. He has also admitted in his cross-
examination that deceased Lingaraju had many enemies
in and around the society and therefore chances of his
enemies having killed Lingaraju cannot be ruled out and
there are chances that appellants / accused have been
roped in without any incriminating evidence.
152. PW-82 / Narsaiah, Manager of Palace Lodge
of Ramanagara had stated that 7 persons had come to
their lodge from Bengaluru in a white Zen car at about
2.30 p.m. and they booked room nos.16 and 17 and
stayed therein. However, he has not supported the case
of the prosecution and has turned hostile.
153. PW-83 / Ramaiah is said to be the supplier in
the said Palace Lodge, Ramanagara who has stated that
he had supplied drinks and non-vegetarian food to the
occupants of the room nos.16 and 17. However, he has
also turned hostile and has stated that he did not give
any statement to the police as per Exhibit P-359.
154. PW-84 / S. Adinarayana is the CCTV
Servicing Technician who has stated that about 7 to 8
years back, the Chamarajapet Police had taken him to
Ramanagara Palace Lodge and on instructions of the
police, he had opened the DVR and removed its hard
disk and had handed over the same to the police.
However, his cross-examination reveals that he has not
undergone any course regarding software and had no
special knowledge in the same. He has admitted that he
had not seen the CCTV footages and did not know the
contents of Exhibit P-306. Hence, his evidence is not
helpful to the case of the prosecution.
155. PW-85 / Umesh is a panch witness to the
seizure of hard disk at Palace Lodge, Ramanagara.
However, he has turned hostile and has not supported
the case of the prosecution.
156. PW-86 / Shivanna is the room boy of Palace
Lodge, Ramanagara who has also not supported the
case of the prosecution and has turned hostile.
157. PW-87 / Druvakumar is the one who had
identified the signatures of the deceased Lingaraju in an
affidavit and also stated that there was a rivalry between
deceased and Accused No.8. However, no evidence is
forthcoming against the appellants / accused.
158. PW-88 / G.C. Manjunath, is the Police
Inspector in CID Office and is an I.O. in part. He has
stated that on 08.02.2013, PW-90 K. Tilak Chandra
issued a memo to conduct photo identification parade of
appellants and others and sent the photographs of five
accused persons with a covering letter containing 30
photographs. In this regard, he had summoned PW-1/
Umadevi to identify photos. Accordingly, she identified
the photographs of Raghavendra, R. Shankar (A-2),
Rangaswamy (A-1), Shankar (A-5) and Chandra (A-4).
PW-2 / Karthik also had identified the said persons.
However, in her cross-examination, she has admitted
that before TIP, the photographs of accused persons
were published in newspapers and other electronic
visual medias. Hence, it is contended that it is well
settled legal position that prior to photo TIP if the
witnesses have already seen the accused persons, there
is no value to the photo TIP. Further, PW-1 and PW-2
have not supported the case of the 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 copy of Exhibit P-357 was generated.
He has further admitted that in Exhibit P-365, the date
of storing and date of processing the data has not been
mentioned. He has also admitted that while copying
from one system to another, there are chances of
adding, deleting, altering of program, etc. He has
further submitted that there are cases against their
channel and the Hon'ble Supreme Court has directed
them that no sting operation could be conducted
without permission of the Court under the
circumstances that it is a fraud channel. Hence, it is
contended that his evidence also is of no significance.
160. PW-90 / K. Tilak Chandra is also an I.O. in
part who was appointed as I.O. in the Special
Investigating Team as on 18.12.2012, after 28 days from
the date of the crime. Major portion of the investigation
was over even prior to his arrival in Cr.No.238/2012.
He had sent requisition to the Jurisdictional Magistrate
to record the statements of PW-1 and PW-2 under
Section 164 of the Cr.P.C. Further, on 27.12.2012 he
had sent a requisition of the Medical Officer of Victoria
Hospital to examine the weapons and give an opinion.
On 29.12.2012, he wrote a letter to the Director of Truth
Lab, Bengaluru to examine the hard disk said to have
been seized at Palace Lodge, Ramanagara. He had
collected the revenue documents in respect of
Ranganatha Hotel to know the name of the owner. He
had recorded the statements of PWs 15, 16 and 18 and
collected the CD of news published in Suvarna TV
regarding Lokayuktha raid conducted on the house of
Accused No.12. Frequently he recorded the statements
of witnesses and residential certificates of accused
persons After collecting all the documents and after
completion of investigation, he submitted the charge
sheet against the accused persons as on 15.02.2013.
161. However, it is elicited in the cross-
examination of PW-90 that he had not collected the
source of mobiles and from where the mobiles were
purchased and who were the holders, users and owners.
He had not collected any application forms in respect of
the CDRs which stood in the name of the appellants /
accused.
162. It is further contended that PWs.1 and 2 have
not supported their statement which was recorded under
Section 164 of Cr.P.C. as per Exs.P19 and P30. They had
stated that whatever told by the police to them as per the
same they had given statement and PW.1 says that she do
not know what are the questions asked by Magistrate and
what answers she has given. The statement recorded is
not substantive evidence unless it is corroborated by the
witnesses during their evidence. The statements under
Section 164 of Cr.P.C. of PWs.1 and 2 were recorded under
the pressure of police. In this regard, reliance is placed
upon the following judgments:
(i) 1972 SCC Crl.493
Ram Kisan Singh vs. Harmit Kaur and another
(ii) (2010) 6 SCC 736
Baijanath Sah vs. State of Bihar
(iii) 1999 Crl.L.J. 1936 (Bombay High Court)
Audumbar Digambar Jagdane Vs. State of
Maharashtra
163. The test identification parade was conducted by
PW.52 as per Ex.P20 and P75. PWs.1 and 2 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 identification parade is
not in proper form as elicited in the cross-examination.
Even the identification of accused No.3 during TIP is not
sufficient because left eye of accused No.3 is defective and
in TIP, similar persons are not placed along with accused
No.3 for proper identification. The TIP was conducted after
lapse of 45 days of arrest of accused persons.
164. It is further contended that the photograph
identification was conducted by PW.88 on 8.2.20213. That
is after lapse of 78 days from the date of arrest. It is
important to note that PWs.1 and 2 have not supported the
case of prosecution regarding photo identification and
more over identification conducted by the police inspector
is hit under Section 162 of Cr.P.C. The CCTV footages as
per MO.13 and the CD as per Ex.P81 is not sufficient to
prove the guilt of accused persons, mere stating that the
accused persons stayed at Palace Lodge at Ramanagar is
not sufficient to say that they have committed the murder
and as the incident took place at Bangalore around 6.45
a.m. to 7 a.m. there is no CCTV footage nor any evidence
to show or to establish that these accused persons had left
the lodge on the day of incident early in the morning to
reach the place of incident. On the other hand PW.3 who
is an expert had deposed in her cross examination has
admitted that it is true to suggest that there is possibility
to change the date and time in the CCTV cameras.
165. Further, the accused visiting and staying in
Mistri trial camp, Gopinatham Village is also not proved by
the prosecution beyond all reasonable doubt. The blood of
deceased was not collected and it is not established that
the same blood group was found on the cloths of accused
persons and the witnesses to the seizure mahazar also did
not supported the case of prosecution to prove the case
beyond all reasonable doubt against these accused
persons. Even there is no motive factor against accused
Nos.1 to 3 and 11 to commit the murder of deceased
Lingaraju. Mere motive against Accused Nos.8 and 12 is
not sufficient to establish that these accused Nos.1 to 3
and 11 had conspired with accused Nos.8 and 12 and in
pursuance of that they committed the murder of the
deceased. But there is no material placed by the
prosecution to establish the conspiracy between these
accused persons with accused No.8. It is pertinent to note
that according to the case of prosecution accused No.11
accompanied accused Nos.4, 5 and 8 and gave the
marriage invitation card of daughter of accused No.8 to
deceased Lingaraju four to five days prior to the incident.
Further, it is relevant to note that the investigation officer
himself produced Ex.P.378 wherein it is mentioned that
accused No.11 is a convicted person and he is in
incarceration and prosecution had not established that
accused No.11 was on bail during the said period. The
investigating officer - PW.81 had filed an application before
the Magistrate to issue body warrant against
accused No.11 / Suresh @ Suri. Therefore, the conspiracy
is not proved by the prosecution beyond all reasonable
doubt.
166. 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
very nature inherently of a weak character.
The evidence in order to carry conviction
should ordinarily clarify as to how and under
what circumstances he came to pick out the
particular accused person and the details of
the part which the accused played in the
crime in question with reasonable
particularity. The purpose of a prior test
identification, therefore, seems to be to test
and strengthen the trustworthiness of that
evidence. It is accordingly. considered a safe
rule of prudence to generally look for
corroboration of the sworn testimony of
witnesses in court as to the identity of the
accused who are strangers to them, in the
form of earlier identification proceeding. There
may, however, be exceptions to this general
rule, when, for example, the court is
impressed by a particular witness, on whose
testimony it can safely rely, without such or
other corroboration. The identification
parades belong to the investigation stage.
They are generally held during the course of
investigation with the primary object of
enabling the witnesses to identify persons
concerned in the offence, who were not
previously known to them. This serves to
satisfy the investigating officers of the bona
fides of the prosecution witnesses and also to
furnish evidence to corroborate their
testimony in court. Identification proceedings
in their legal effect amount simply to this: that
certain persons are brought to jail or some
other place and make statements either
express or implied that certain individuals
whom they point out are persons whom they
recognize as having been concerned in the
crime. They do not constitute substantive
evidence. These parades are essentially
governed by S.162, Cr. P.C. It is held on facts
that the test identification in the case could
not be considered to provide safe and
trustworthy evidence on which the conviction
of accused could be sustained."
(ii) Iqbal and another vs. State of UP
(2015) 6 SCC 623
Criminal trial - identification - test identification
parade - identification of miscreants in TIP - evidentiary
value of - conviction cannot be based solely on
identification of accused in TIP - necessity of adducing
reliable substantive evidence to prove offence beyond
reasonable doubt - occurrence taking place in pitch
darkness - relevance - case of dacoity with murder. It is
held that evidence of identification in TIP is not
substantive evidence and conviction cannot be based solely
on identification of accused by witnesses in TIP but the
prosecution has to adduce reliable substantive evidence
connecting accused with crime to prove offence beyond
reasonable doubt.
(iii) Ram Kishan Singh vs. Harmit Kaur and another
1972 SCC (Cri) 493
In this judgment the Hon'ble Apex Court held as under:
(i) A statement under Section 164 of Cr.P.C is
not substantive evidence. It can be used to
corroborate the statement of a witness. It
can be used to contradict a witness.
(ii) The High Court as an appellate court can set
aside an order of acquittal. In doing 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 164 - prosecutrix not giving
any evidence in court - during alleged crime other accused
bringing prosecutrix to appellant's house but nothing on
record to show appellant's involvement - effect - mere
Section 164 Cr.P.C. statement of prosecutrix, held, is not
enough to convict appellant - Section 164 Cr.P.C.
statement is not substantive evidence and can be utilized
only to corroborate or contradict the witness vis-à-vis
statement made in court.
(v) 1999 Crl.L.J.1936 - Audumbar Digambar Jagdane
vs. State of Maharashtra.
Criminal Procedure Code ( 2 of 1974), Section 164
- Statement under - witness turning hostile - statement
even if proved, cannot be used as substantive evidence.
It is contended by the learned Senior counsel Shri
B.V. Acharya as well as Shri Vishnumurthy for Accused
Nos.1 to 3 that though as many as 90 witnesses have
been subjected to examination and cross-examination to
prove the guilt of the accused, the major witnesses have
turned hostile and they did not withstand their
statements including the panch witnesses to the spot
mahazar, seizure mahazar and other seizure mahazar of
weapons including the TIP proceedings, motive factor,
conspiracy, CCTV footage. Even other independent
witnesses did not withstand the versions of their
statements to prove the guilt of the accused. Except the
public service police personnel who conducted the
investigation, nobody else has supported the case of the
prosecution, despite which the Trial Court has rendered
a conviction judgment only on the basis of surmises and
conjectures without properly appreciating the evidence
on the part of the prosecution in a proper perspective.
Therefore, the findings of the Trial Court are perverse
and the Trial Court has misdirected and misinterpreted
the evidence despite all witnesses having turned around
in the cross-examination. Therefore, these appeals
require intervention. If not interfered, the accused
persons would be the sufferers and it would result in a
substantial miscarriage of justice.
167. In continuation of the arguments advanced
by the learned Senior Counsel Shri B.V. Acharya for
Accused Nos.1 to 3, learned Senior Counsel Shri C.V.
Nagesh has addressed his arguments in respect of
Accused No.8 / C. Govindaraju who is the appellant in
Crl.A.No.54/2021 and in support of Accused No.12 /
Gowramma who is the appellant in Crl.A.No.1068/2020.
Accused No.8 and Accused No.12 are spouses who have
been arraigned as accused relating to the murder of
deceased Lingaraju. Learned Senior Counsel Shri C.V.
Nagesh has contended that the Trial Court has gravely
erred in convicting Accused Nos.8 and 12 inclusive of
other accused relating to offences under Section 109,
302 read with Section 149 of the IPC. In the impugned
judgment of conviction rendered by the Trial Court in
paragraph 228 at page 223, it is observed that all the
material witnesses have turned around and have given a
go-by to the versions of their statements and it is held
that there is 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 was
exclusively used by Accused No.8. There is absolutely
no evidence as such proved by the prosecution that at
any point of time Accused No.12 / Gowramma had
conversation with Accused Nos.4, 5, 7 or that she had
abetted Accused Nos.4, 5, 7 in committing the offences.
Hence, the Trial Court having convicted this accused in
spite of this inconsistent evidence is without any basis
and is bad in law.
169. PW-81 who is the I.O. in part who came to
the spot at around 11.45 a.m. had asked PW-1 / Uma
Devi whether she would give an oral or a written
complaint to which she replied that she would give a
written complaint got written by somebody.
Accordingly, PW-81 received the complaint at the spot
and set the criminal law into motion by recording an
FIR. However, the scriber of Exhibit P1 was not
examined or was not identified or his signature was not
attested in Exhibit P1. Hence, it is contended that this
aspect goes to show that the contents of Exhibit P1 was
not known to PW-1 / Uma Devi and hence she has
turned hostile before the Court. Further, it is contended
that PW-1 had not dictated the contents of Exhibit P1
but only with an intent to implicate Accused No.8,
Exhibit P1 complaint has been created by the
prosecution. Further, the name of Accused No.8 is not
mentioned in Exhibit P1, which aspect has been
completely ignored by the Trial Court.
170. It is further contended that that Trial Court
has erred in holding that Exhibit P1 was prepared after
the arrival of PW-81 and PW-80. However, it is
contended that PW-80 and PW-81 were already present
near the spot and investigation was already commenced
even before lodging of the complaint at Exhibit P1.
Further, the name of PW-2 is also not mentioned in
Exhibit P1 or the name of the appellant / accused also
was not mentioned. PW-1/Uma Devi is the only solitary
eye-witness to the incident. This aspect is corroborated
with Exhibit P127 inquest in Column Nos.3 and 4 as the
person who had last seen the deceased alive. Further,
in the entire contents of the complaint or in Exhibit
P127, the name of the appellant / Accused No.8 has not
been mentioned and this important aspect has been
brushed aside by the Trial Court in convicting the
accused.
171. It is further contended that the Trial Court
has gravely erred in holding at Accused Nos.8 and 12
had a strong motive against deceased in view of the fact
that the deceased Lingaraju had filed PCR No.65/2012
before the Hon'ble Lokayuktha Court and a case was
registered at the instance of the deceased against
Accused No.12 in Cr.No.82/2012 as per Exhibit P220.
However, it is contended by the learned Senior counsel
that Cr.No.82/2012 was not registered at the instance
of the deceased Lingaraju but it was registered on a suo
moto complaint by one Ravishankar, Inspector of Police,
Lokayuktha. Further, the said case was stated before
this Court in Crl.P.No.1076/2018 by order dated
10.07.2019. Further, the said Ravishankar as well has
not been examined to prove the 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, it is contended that none of these
documents got marked shows that there was motive for
Accused Nos.8 and 12 to commit the murder of the
deceased. Moreover, motive is not essential for Section
302 of the IPC, despite of which the Trial Court has
rendered a conviction judgment against the accused.
Therefore, it requires intervention in these appeals by
re-appreciating the evidence and scrutinizing the
evidence analytically.
173. It is further contended that the Trial Court
has gravely erred in holding as per the affidavit dated
18.06.2010 at Exhibit P26, Accused No.8 and others
have threatened deceased Lingaraju. Deceased
Lingaraju was an RTI activist who was complaining
against so many persons and has filed various affidavits
in this regard against various persons. Hence, the Trial
Court has erred in holding that there was a serious
threat to deceased Lingaraju by Accused No.8 which
had continued till his death and hence that Exhibits
P26, 27, 29, 116, 220, 223, 349, 385, 391 and PW-87
evidence were proved as per Section 32(1) of the Indian
Evidence Act. However, in order to attract Section 32(1)
of the Indian Evidence Act, the proximity of time is very
essential and more particularly, no allegation against
this fact has been made, which has been completely
ignored by the Trial Court.
174. It is further contended that PW-87 / K.
Druvakumar though had stated that on 20.11.2012 the
deceased Lingaraju receiving threatening calls from
various persons, PW-87 has not revealed the names of
those persons. Further, no documents are produced to
show that the deceased Lingaraju had received any
threatening calls. Section 32(1) of the Indian Evidnece
Act clearly states that by anticipating one's death, if a
person declares such statement, the said declaration
made by the deceased will be admissible. However, in
the instant case, there is a proximity of time to be
considered namely Exhibit P26 dated 20.06.2010,
Exhibit P27 dated 12.06.2012, Exhibit P28 dated
31.07.2012, Exhibit P29 dated 31.07.2012, Exhibit
P116 dated 22.06.2010, Exhibit P285 dated 23.06.2012,
Exhibit P391 dated 06.09.2010, Exhibit P349 dated
13.07.2012, Exhibit P220 dated 08.11.2010, Exhibit
P223 dated 09.11.2012 and Exhibit P400 dated
09.11.2012. However, these documents even though
have been got marked, but it does not attract Section
32(1) of the Indian Evidence Act. Exhibit P391 is a
letter submitted by PW-90 to investigate as to who made
the threatening call, which is in no way concerned with
Accused Nos.8 and 12. This important aspect of the
matter has been completely ignored by the Trial Court
which has erroneously arrived at a conclusion that the
prosecution has proved the guilt of the accused.
175. Learned Senior counsel Sri C.V.Nagesh for
Accused Nos.8 and 12 in Crl.A.No.54/2021 and
Crl.A.No.1068/2020 has also filed synopsis in support
of his case. It is contended that on the complaint filed
by PW-1 / Smt. Uma Devi who is none other than the
wife of the deceased 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 place where her husband was assaulted, he was
found dead and that she also saw a knife and a handle
lying over the place of offence and that she can identify
the assailants of her husband and that she has every
reason to suspect the hand of accused No.8 in the
incident of assault on the person of her husband for the
reason that under a misconception that her husband
Lingaraju was the one who was responsible for a raid
which came to be conducted on his residential premises
by the Lokayukta police and action needed be taken
against the assailants of her husband. Thereafter, the
case in Crime No.238/2012 which came to be registered
on the strength of the complaint filed by PW-1 /
Smt. Uma Devi, for an offence which is made penal
under Section 302 read with Section 34 of IPC came to
be investigated and upon completion of the investigation
of the crime, the Investigator submitted a charge sheet
against 12 named in the final report including the
appellant for offences under Sections 120-B, 109, 143,
147, 148, 150, 302 read with Section 149 of IPC.
176. It is his contention that accused Nos.8 and
12 are lugged into the case only with the aid and
assistance of Section 120-B of the IPC on the that he
had conspired with his companion accused in the case
to do away with the life of the deceased Lingaraju.
Upon the accused against whom the final report is filed,
pleading not guilty to the charges leveled against them,
the matter went up for trial . During the trial, the
prosecution examined in all 90 witnesses and marked
several documents as exhibits in addition to several
material objects including the weapons said to have
been used by the assailants to assault the deceased.
The evidence led by the prosecution during the trial of
the case is divided into five categories - (i) motive and
conspiracy to commit the crime (ii) eye-testimony (iii)
recovery of certain material objects (iv) some other
circumstances that are pressed into service by the
prosecution to lend credence to its case against the
accused and (v) scientific, medical and electronic
evidence.
177. With regard to motive and conspiracy to
commit the crime, learned counsel for accused No.8
contended that to bring on record in the case that
appellant / accused No.8 entered into a conspiracy with
his other companion accused in the case to do away
with the life of deceased Lingaraju, the prosecution the
trial of the case examined the witnesses. PW.1 -
Umadevi who is none other than the wife of deceased,
PW.2 - Karthik being son of deceased, PW.5 - Lokesh
who is the neighbour, PW.7 - Prakash, PW.8 - Arun
who is the son of deceased, PW.9 - Balakrishna, PW.10
- Pratap, PW.11 - Chandregowda and PW.12 -
Chikkamahadeva Gowda, their evidence has been
treated hostile by the prosecution.
178. In respect of eye-testimony the prosecution
during the trial of the case as eye-witnesses to the
incident of assault on the person of the deceased
Lingaraju, PW.1, PW.2, PW.4, PW.5 and PW.6 who were
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 of seizure of mobile phone under
Exs.P.137 and 138. PW.16 - L.Krishna Murthy was
examined to speak to Ex.P.106 under which mobile
phone is said to have been recovered. PW.36 - Uttar
Kumar was examined to speak to spot and inquest
panchanama drawn and marked as Ex.P2 and Ex.P127.
PW.37 - Shivaprasad was examined to speak to recovery
of weapons under Exs.P147 and 152. PW.38 - Ramesh
was examined as panch witness in respect of recovery of
weapons, cash and mobile phone under Exs.P147, 152
and 154. PW.39 - Shankar and PW.40 - Keerthi are the
panch witnesses for seizure of car and cash under
Exs.P124, 156 and 157. PW. 41 - Pawan Kumar is the
panch witness for seizure of mobile phone under
Ex.P159. PW.42 - Saravana is the panch witness for
Exs.P161 under which mobile phone is said to have
been seized. PW.43 - Kondaiah is the examined for the
panchanama drawn and marked as Ex.P163 with
regard to the place where some of the accused said to
have stayed. PW.44 - Prasanna is the supplier in a Bar
and was examined to speak to Ex.P163. PW.47 -
Shivaraj was examined to speak to Ex.P159 regarding
seizure of mobile phone. PW.48 - Satish was examined
in respect of Ex.P.106 seizure of mobile phone. PW.49 -
Shivakumar was examined in respect of Ex.P106.
PW.58 - Ganesh is the Revenue Inspector who was
examined to speak in respect of Ex.P190. PW.85 -
Umesh was examined to speak in respect of Ex.P306
drawn by palace lodge. But all these witnesses who are
examined on the part of the prosecution did not
withstand their versions and accordingly, they were
treated hostile by the prosecution.
180. PW.13 - Ramesh is an employee of the co-
operative bank who was examined to speak regarding
loan borrowed from a banking institution and its
repayment. PW.15 - Revanna was examined in respect
of bank borrowings. PW.17 - Lokesh was examined to
speak about he having lent money to the accused.
PW.20 - Sumithra is the employee of the City Co-
operative Bank who was examined with regard to money
transaction. PW.21 - Nagaraj is an Advocate who was
examined to speak to he having worked as an office
assistant in the office of accused No.8. PW.23 -
Channakeshwara is the caterer who service is said to
have been taken as catering contractor in the marriage
of the daughter of accused No.8. PW.24 - Shivakumar
was examined to having joined hands with PW.23 in the
catering work. PW.27 - Bommalinga is the employee in
a Daba who was examined to speak to the presence of
some of the accused in the Daba. PW.28 - Ravi is the
employee in a Daba who was examined to speak to the
presence of some of the accused in the Daba. PW.29 -
Chand Pasha is the foot-path vendor who was examined
to speak to some of the accused buying cloth from him.
PW.30 - Beluraiah is the Car Driver was examined to
speak to he having driven the car in which some of the
accused had gone to Hoganekal. PW.31 - Syed Ali was
examined to speak to some of the accused having gone
to Hogenakal which fact is said to 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 DVR and
collected CCTV footage of the Lodge. PW.86 - Shivanna
is the Room Boy of Palace Lodge who was examined to
speak to some of the accused having stayed in the
Lodge. The evidence of all these witnesses were treated
hostile by the prosecution since nothing worthwhile was
forthcoming in the case of the prosecution. PW.52 -
Smt.R.Suma is the Tahsildar and Executive Magistrate,
Bangalore North Taluk who conducted the Test
Identification Parade at the Central Prison, Bengaluru
and her evidence with regard to the test identification of
the assailants of the deceased by PW.1 - Uma Devi and
PW.2 Karthik the wife and son respectively of the
deceased is of no consequence for the reason that PWs.1
and 2 have not identified the assailants of the deceased
during the trial of the case when they came to be
examined by the prosecution.
181. In respect of electronic, scientific and medical
evidence the following witnesses were examined by the
prosecution during the trial to connect the accused
inter se in the case vis-à-vis the calls interse alleged to
have been made by using certain mobile phones. PW.71
- Rajesh.K. is the Nodal Officer, Vodafone who did not
say anything against the accused other than furnishing
to the investigating officer the chart said to contain the
out-going calls made from mobile phone bearing
No.8722806803. Further the evidence of PW.74 -
Ratnakar Naik who is the Nodal Officer of BSNL he did
not say anything against the accused other than
furnishing to the investigating officer the chart said to
contain the out-going calls made from mobile phone
bearing No.9449815395. Further the evidence of PW.72
- S.N.Murthy who is the Nodal Officer of Vodafone he
did not say anything against the accused other than
furnishing to the investigating officer the chart said to
contain the out-going calls made from mobile phone
bearing No.9742774249, 9986374834, 9742867217.
PW.73 - Stanley is the Nodal Officer of Bharti Airtel and
in his evidence he did not say anything against the
accused other than furnishing to the investigating
officer the chart said to contain the out-going calls made
from mobile phone bearing No.9008687866,
9632933599, 9738606022, 9972133896, 9980046187,
9591717159 and 9945850261. It is contended that the
admissions given by these witnesses during the course
of his cross-examination do not even remotely indicate
that any calls were made by the appellant / accused
No.8 to anyone at any point of time, let alone, to his
other companion accused in the case.
182. It is the further contention of learned counsel
for accused No.8 that the only witness who is examined
by the prosecution from the Forensic Science
Laboratory is Smt.Malathi as PW.53. This witness is
examined to speak to the blood-stains said to have been
found on certain material objects recovered/collected
during the course of the investigation of the crime. In
categorical terms this witness has stated that the
investigator had not sent 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 having taken treatment in the
Hospital as Indoor Patient few years ago and the records
maintained in the Hospital disclosed that Lingaraju's
blood group was 'O' positive and he has issued the
certificate as per Ex.P165 on the basis of the records
maintained in the hospital. The original records
maintained in the Hospital is said to be the one relating
to the deceased in which the entry to the effect that the
blood group of the deceased was 'O' positive is not
placed on record for being read as evidence in the case.
But the evidence of Dr.Malathi, the official attached to
the FSL who is said to have been examined the stains of
blood found in certain material objects do not even
remotely indicate that the blood group of the stains
found on the material objects so examined by her is of
'O' positive, instead, she only says that it belonged to
"O" group.
183. PW.46 - Dr. Pradeep Kumar who was
examined on the part of the prosecution conducted the
autopsy over the dead body of the deceased and the
post mortem report is marked as Ex.P166 in addition to
the opinion given by him with regard to the possibility of
the injuries found on the person of the deceased having
been caused with the weapons said to have been seized
at the instance of the assailants of the deceased. It is
contended that the testimony of this witness could be
used by the prosecution only for the limited purpose of
establishing that the death of Lingaraju was a homicidal
one and nothing more or less. It is so for the reason
that the witnesses who were examined to speak to the
recovery said to have been effected at the instance of the
accused by the Investigator, have not chosen to support
the case of the prosecution. That apart, the admissions
which this witness has given during the course of his
cross-examination would belie the contentions of the
prosecution that the deceased came to be assaulted by
using the weapons said to have been recovered at the
instance of the assailants of the deceased. Even
otherwise, this may not much importance for the simple
reason that none of the eye-witnesses to the incident of
assault would speak against the accused who were
before the Court as assailants of the deceased.
184. PW.65 - D.Ramakrishna Rao, PW.66 -
Dhananjay and PW.67 - Smt.Uma are the Assistant
Revenue Officers of BBMP who were examined on the
part of the prosecution. Their testimony relate to they
having given copies of certain documents as sought for
by the investigating agency.
185. PW.75- Nagarajaiah is the Police constable
who took certain photographs of the scene of offence.
PW.76 - Gopala Krishna is the Head Constable who
apprehended some of the accused in the case and
produced them before the IO. PW.77 - Muni Raju B.R.
is the Police Constable who kept a watch over the dead
body of the deceased. PW.78 - Eshwarappa is the Police
Constable who carried certain articles to FSL and to the
Doctor who conducted the autopsy over the dead body
of 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 examined on the part of the prosecution to
prove the guilt against the accused. It is contended
that the prosecution did not adduce any evidence to the
connect accused No.8 with the case and the trial Court
has erroneously convicted the accused taking the
materials from the charge sheet which is inadmissible in
evidence. The prosecution failed to bring any iota of
evidence to hold that the accused persons are guilty of
the alleged offence. The impugned judgment rendered
by the trial Court is illegal, perverse and opposed to the
principles of criminal justice delivery system. Therefore,
sought for allowing the appeals by setting aside the
impugned judgment of conviction rendered by the trial
Court.
186. In support of his arguments, the following
reliances have been placed by the learned senior
counsel:
(i) Ram Kishan Singh vs. Harmit Kaur and
another (1972) 3 SCC 280
In this judgment, the Hon'ble Supreme Court has
held that "a statement under Section 164 of the 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. The first information report was
considered by the Sessions Judge. Any special
consideration of the statement of Hazura Singh under
Section 164 of the Cr.P.C could not have produced a
different result by reason of the conclusions of the
Sessions Judge as to rejecting the oral evidence of Nihal
Kaur, Harmit Kaur and Hazura Singh as unreliable,
untruthful and unworthy of credence"
(ii) Narsinbhai Haribhai Prajapati vs.
Chhatrasinh and others AIR 1977 SC
In this judgment, it is held that "we are prepared
to assume in favour of the prosecution that the evidence
in regard to the incident of the 23rd near the pond and
the evidence in regard to the incident which took place
near the Ota of the Pir shows that the respondents had
some motive for committing the crime. We may also
accept that blood-stained shirt and dhoti were seized
from the person of respondent 1 and dharias were
seized from the houses of respondents 1 and 3. But
these circumstances are in our opinion wholly
insufficient for sustaining the charge of murder of which
the respondents are accused."
(iii) Anjan Kumar Sarma vs. State of Assam
AIR 2017 SC 2617
In this judgment at para 20 and 21 it is held as under:
20. Mr. R. Venkataramani relied upon
Deonandan Mishra v. State of Bihar, (1955) 2 SCR
570 at p.582 to buttress his submission that the
circumstance of last seen together coupled with
lack of any satisfactory explanation by the accused
is a very strong circumstance on the basis of which
the accused can be convicted. It was held by this
Court in the above judgment as follows:-
"It is true that in a case of circumstantial evidence
not only should the various links in the chain of
evidence be clearly established, but the completed
chain must be such as to rule out a 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 requisite for conviction on
the basis of circumstantial evidence."
21. It is clear from the above that in a case where
the other links have been satisfactorily made out
and the circumstances point to the guilt of the
accused, the circumstance of last seen together and
absence of explanation would provide an additional
link which completes the chain. In the absence of
proof of other circumstances, the only circumstance
of last seen together and absence of satisfactory
explanation cannot be made the basis of conviction.
The other judgments on this point that are cited by
Mr. Venkataramani do not take a different view
and, thus, need not be adverted to. He also relied
upon the judgment of this Court in State of Goa v.
Sanjay Thakran, (2007) 3 SCC 755 in support of
his submission that the circumstance of last seen
together would be a relevant circumstance in a case
where there was no possibility of any other persons
meeting or approaching the deceased at the place of
incident or before the commission of crime in the
intervening period.
(iv) Satye Singh and another vs. State of
Uttarakhand (2022) 5 SCC 438
In this judgment it is observed that "at this juncture,
let us regurgitate, the golden principles laid down by this
Court in Sharad Birdhichand Sarda vs. State of Mahashtra
reported in 1984 (4) SCC 116. This court while drawing the
distinction between "must be" and "may be" observed as
under in para 153:
"153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not
"may be" established. There is not only a grammatical
but a legal distinction between "may be proved" and
"must be or should be proved" as was held by this Court
in Shivaji Sahabrao Bobade v. State of Maharashtra
where the observations were made : (SCC p.807, para
19)
19...Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between 'may
be' and 'must be' is long and divides vague conjectures
from sure conclusions.
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of 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 )
"9. 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,. . . such
absence of explanation or false explanation would itself
be an additional link which completes the chain."
187. It will be seen that this Court while taking
into account the absence of explanation or a false
explanation did hold that it will amount to be an
additional link to complete the chain but these
observations must be read in the light of what this
Court said earlier viz. before a false explanation can be
used as additional link, the following essential
conditions must be satisfied:
(1) various links in the chain of evidence led by the
prosecution have been satisfactorily proved,
(2) the said circumstance points to the guilt of the accused
with reasonable definiteness, and
(3) the circumstance is in proximity to the time and
situation.
188. If these conditions are fulfilled only then a
court can use a false explanation or a false defence as
an additional link to lend an assurance to the court and
not otherwise. On the facts and circumstances of the
present case, this does not appear to be such a case.
This aspect of the matter was examined in Shankarlal
case, SCC at p.39, SCC (Cri) at pp.318-19 where this
court observed thus: [SCC para 30, p.43 : SCC (Cri)
p.322]:
"Besides, falsity of defence cannot take the place of
proof of facts which the prosecution has to establish in
order to succeed. A false plea can at best be considered
as an additional circumstances, if other circumstances
point unfailingly to the guilt of the accused."
The said principles have been restated in catena of
decisions. In State of U.P. vs. Ashok Kumar Srivastava
(1992) 2 SCC 86, it has been observed in para 9 that:
"9. This Court has, time out of number, observed that
while appreciating circumstantial evidence the Court
must adopt a very cautious approach and should
record a conviction only if all the links in the chain are
complete pointing to the guilt of the accused and every
hypothesis of innocence is capable of being negatived
on evidence. Great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is
reasonably capable of two inferences, the one in
favour of the accused must be accepted. The
circumstance relied upon must be found to have been
fully established and the cumulative effect of all the
facts so established must be consistent only with the
hypothesis of guilt. But this is not to say that the
prosecution must meet any and every hypothesis put
forward by the accused however far-fetched and
fanciful it might be. Nor does it mean 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 trial. It was held in para
11: (AIR p.406)
"11. This lays down the general rule that in a
criminal case the burden of proof is on the prosecution
and Section 106 is certainly not intended to relieve it of
that duty. On the contrary, it is designed to meet certain
exceptional cases in which it would be impossible, or at
any rate disproportionately difficult, for the prosecution to
establish facts which are "especially" within the
knowledge of the accused and which he could prove
without difficulty or inconvenience. The word "especially"
stresses that. It means facts that are pre-eminently or
exceptionally within his knowledge. If the section were to
be interpreted otherwise, it would lead to the very
startling conclusion that in a murder case the burden lies
on the accused to prove that he did not commit the
murder because who could know better than he whether
he did or did not. It is evident that that cannot be the
intention and the Privy Council has twice refused to
construe this section, as reproduced in certain other Acts
outside India, to mean that the burden lies on an accused
person to show that he did not commit the crime for
which he is tried. These cases are Attygalle v. Emperor
and Seneviratne v. R.
(v) Ravinder Singh v. State of Punjab (AIR
2022 SC 2726)
In this judgment, at para 10 it is held as under:
10. The conviction of A2 is based only upon
circumstantial evidence. Hence, in order to sustain a
conviction, it is imperative that the chain of
circumstances is complete, cogent and coherent. This
court has consistently held in a long line of cases
[See Hukam Singh v. State of Rajasthan AIR 1977
SC 1063); Eradu and Ors. v. State of Hyderabad
(AIR 1956 SC 316); Earabhadrappa @ Krishnappa v.
State of Karnataka (AIR 1983 SC 446); State of U.P.
v. Sukhbasi and Ors. (AIR 1985 SC 1224);
Balwinder Singh @ Dalbir Singh v. State of Punjab
(AIR 1987 SC 350); Ashok Kumar Chatterjee v. State
of M.P. (AIR 1989 SC 1890)] that where a case rests
squarely on circumstantial evidence, the inference of
guilt can be justified only when all the incriminating
facts and circumstances are found to be
incompatible with the innocence of the accused. The
circumstances from which an inference as to the guilt
of the accused is drawn have to be proved beyond
reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be
inferred from those circumstances. In Bhagat Ram v.
State of Punjab (AIR 1954 SC 621), it was laid down
that where the case depends upon the conclusion
drawn from circumstances, the cumulative effect of
the circumstances must be such as to negate the
innocence of the accused and bring the offence home
beyond any reasonable doubt.
(vi) C. Chenga 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 convicted the accused on
the strength of statement of PW.10 recorded under
Section 164 of Cr.P.C. The trial Court grossly erred in
placing reliance on the statement recorded under
Section 164 of Cr.P.C. as substantive evidence. While
convicting the accused the statement recorded under
Section 164 of Cr.P.C. does not have any better legal
status than the one recorded under Section 161(3) of
Cr.P.C. At the most, if the deponent whose statement is
recorded under Section 164 turns hostile, he/she could
be prosecuted for perjury but on the strength of such
statement no conviction can be placed".
190. As regards the involvement of Accused Nos.8
and 12, it is contended that the Trial Court has
erroneously given a finding by rendering a conviction
judgment as there is no individual charge framed
against the accused. However, the deceased Lingaraju
gave a complaint to Lokayuktha against Accused No.8 /
Govindaraju and Accused No.12/ Gowramma in relation
to power loom workers and asking for information under
the RTI Act and it is stated that Accused No.8 had
instigated and abetted other accused persons to commit
the murder of Lingaraju. However, as regards the said
charge No.5, absolutely there is no linking circumstance
to prove that Accused No.8 had got any connection
directly or indirectly with Accused Nos.4, 5 and 7 and
hence the question of convicting Accused no.8 with the
aid of Section 109 read with Section 149 of the IPC,
does not arise.
191. PWs 1, 2 and 8 who are the wife and sons of
the deceased had not made any allegations against
Accused No.12. Even when deceased filed a complaint
against Accused No.12, no such documents were
produced and the deceased filed PCR No.65/2012
against Accused No.8. However, no action was taken
and only it was a suo moto case registered by the
Lokayuktha Police as per Exhibit P220. Deceased
Lingaraju was not even a pancha to the seizure mahazar
in the said case. Therefore, the question of enmity
between the Accused No.12 and the deceased Lingaraju
does not arise at all. Further, it cannot be expected that
Accused No.8 and remaining accused were unknown to
Accused No.12 and even that it cannot be assumed that
there was any connecting incriminating circumstances
established against Accused No.12. When the case
stands on circumstantial evidence, it is essential to
prove that the accused and accused alone are
responsible for the act in view of the law laid down by
the Hon'ble Apex Court in 2020 Crl.J. 173. Each
circumstances is to be established to connect the
accused to the incident and even a single missing chain
would lead to the benefit of doubt going in favour of the
accused. In the instant case, it is contended that the
prosecution has failed to prove 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 through PW-15 and his son Hemanth with
the Bangalore City Co-operative Bank, Avalahalli and
had drawn Rs.10 lakhs. When PW-13, PW-14 and PW-
20 were examined as regards the same, they had not
stated that Accused No.12 and Accused No.8 having
come to the Bank and receiving the amount nor PW-15
had also not stated that he had handed over the amount
to Accused No.8 and Accused No.12. This important
material incriminating circumstances have not been put
in the 313 statement to the appellant / Accused No.12.
Even then, the Trial Court having convicted the
accused, is unsustainable in law. This is against the
law laid down by the Hon'ble Supreme Court in the case
of Ashraj Ali vs. State of Assam (2008 (16) SCC 228)
which states that every circumstances appearing
against the accused must be put to him specifically, and
failure to do so, would vitiate the trial if accused is
shown to be prejudiced which has resulted in a
miscarriage of justice.
192. These are the contentions made by the
learned Senior Counsel Shri C.V. Nagesh relating to
Accused Nos.8 and 12 who are the appellants in
Crl.A.No.54/2021 and Crl.A.1068/2020. Learned
Senior counsel has referred to the judgment of
conviction rendered by the Trial Court in
S.C.No.428/2013 dated 28.10.2020 as well as certain
circumstances as to how the Trial Court has convicted
the accused giving credentiality to circumstantial
evidence. But in the instant case though several
witnesses have been subjected to examination, but
those witnesses have given a go-by to the versions of
their statements. PW-1 / Uma Devi is the complainant
at Exhibit P1. In her presence, Exhibit P2 / spot
mahazar was drawn by the I.O. PW-2 / Karthik is the
son of the deceased and even PW-8 / Arjun are material
witnesses on the part of the prosecution have been
subjected to examination, but they did not withstand
the versions of their statements in respect of the
versions made at Exhibit P1. Despite of which, the Trial
Court has rendered a conviction judgment. PW-12 who
has been subjected to examination and got marked
portions of the statements at Exhibits P32(a) to P32(p).
PW-2 / Karthik had given statement under Section 164
of the Cr.P.C. and when he was subjected to
examination, he has given a go-by to the versions of his
statements given to the I.O. Contradictory part of the
statement has been marked at Exhibits P76, P76(a) to
P76(e) and P77, P77(a) to P77(j). Further statements of
one Renukaradhya and further statements of Karthik
inclusive of Prakash K and declaratory part of their
statements have been got marked at Exhibits P89 to 92
and 92(a) to 92(f). Part Statements of Arjun,
Balakrishna, Prathap, Chandregowda and
Chikkamadegowda inclusive of the declaratory
statements of 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 set aside the judgment of conviction
rendered by the Trial Court in S.C.No.428/2013 and
consequently to acquit the accused persons.
194. Similar contentions as that of learned Senior
counsel Shri C.V. Nagesh, are made by the Learned
counsel Shri Ajith Anand Shetty for Accused No.4 and
Shri Satyanarayana S. Chalke for Accused Nos.5 to 7
and learned counsel Shri M Devaraja for Accused Nos.9
and 10 are contended by referring the evidence let in by
the prosecution to prove the guilt mainly the evidence of
PW-1, PW-2, PW-8 and PW-46, PW-53, PW-80, PW-81.
Lastly, learned counsel have submitted that the
prosecution has failed to prove the guilt against the
accused persons in respect of eliminating the deceased
Lingaraju, none other than the husband of PW-1 / Uma
Devi who is the author of the complaint. PW-1 / Uma
Devi has not withstood the versions of her statement
made under Section 164 Cr.P.C. inclusive of the
contents at Exhibit P1 complaint. Further, PW-2 /
Karthik, son of deceased Lingaraju also has not
withstood his statement made under Section 164
Cr.P.C.
195. It is specifically contended that it is relevant
to refer to the evidence of PW-1 / Uma Devi and
similarly PW-2 / Karthik and PW-4 / Arun. PW-4 is the
son of PW-1 / Uma Devi and so also the son of
Lingaraju, an RTI activist and Editor of
'Mahaprachanda' daily local newspaper. PW-5 / Lokesh
and PW-6 / Renuka Aradhya are said to be eye-
witnesses to the incident narrated in the complaint at
Exhibit P1. But all these witnesses have turned hostile
to the versions of the incident narrated in the complaint
at Exhibit P1. PW-1 / Uma Devi and PW-2 / Karthik
have given their statements under Section 164 of the
Cr.P.C. which have been recorded by the Judicial
Magistrate, but have disowned their statements relating
to the incident narrated. PW-1 in her evidence has
specifically stated that the relationship between her
husband deceased Lingaraju and Accused No.8 / C.
Govindaraju and Accused No.12 / Gowramma was
cordial in nature. PW-1 has further stated that she did
not scribe the FIR and as instructed by the police, she
affixed her signature at the police station. Further, she
has also stated that she did not know the contents of
the mahazar and that she has also told that Accused are
not the persons said to have assaulted her husband.
Further, she did not identify any of the accused persons
present before Court. During the course of cross-
examination, 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
Inspector has stated in his evidence to the effect that on
20.11.2012 at about 8.00 a.m. had gone to the scene of
crime and he has spoken about the receipt of a
complaint at Exhibit P1. He has spoken that as per
Exhibit P1, some unknown persons had committed the
murder of Lingaraju. He has admitted that at the time of
registering the FIR, he did not know the whereabouts of
PW-1 / Uma Devi.
197. PW-81 / I.O. had admitted that he did not
investigate regarding the incoming / outgoing calls,
whatsapp messages, etc., connected to MOs 38, 39 and
40 and he did not make any investigation to find out the
sources of the mobile. PW-81, PW-90 and PW-54 are
the Investigating Officers who had accessed the various
mobile numbers and analyzed CDRs, CAFs and they
have categorically admitted that no mobile handsets or
SIM numbers stood in the names of any of the accused
persons.
198. The prosecution has though has marked
Exhibits P109, 110 to prove that the accused persons
stayed at the Guest House in Tamil Nadu, both the said
documents are scribed in Kannada language, which
prima facie indicates that both the said documents were
forged, for the purpose of the case.
199. Hence, it is contended that according to the
prosecution, none of the accused persons had stayed at
Palace Lodge on 20.11.2012, the date of the incident.
Further, there is no connecting material to point out
that the accused were staying at Palace Lodge,
Ramanagar on 19.11.2012 and 21.11.2012. CCTV
footage is not proved beyond all shadow of doubt. That
apart, the prosecution has also not adduced any iota of
evidence that Accused Nos.1 to 6 were present in
Bengaluru or at the place of occurrence at the relevant
date as on 20.11.2012. Further, though so many
recoveries were made vide various PF numbers, the said
PF numbers are in no way connected to the appellants.
Viewed from any angle, it is contended that the
prosecution did not adduce any evidence to connect
accused Nos.4 to 7 in the case. The Trial Court has
erroneously convicted the accused taking the materials
from the charge-sheet, which is inadmissible in
evidence. Law is well-settled that in order to prove the
case, the prosecution needs to adduce evidence.
However, the prosecution has failed to bring any iota of
evidence to bring out any iota of evidence to prove the
guilt of the accused.
200. Learned counsel Shri Satyanarayana S.
Chalke for Accused Nos.5, 6 and 7 in support of his
arguments has relied on the following decisions:
(i) Chandrapal vs. State of Chattisgarh (2022
5 Supreme 404)
In this judgment, the Hon'ble Supreme Court has
held as under:
Circumstantial evidence - The circumstances
concerned "must or should be" established 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. State of Maharashtra,
wherein this Court held thus:
"152. Before discussing the cases relied upon
by the High Court we would like to cite a few
decisions on the nature, character and
essential proof required in a criminal case
which rests on circumstantial evidence alone.
The most fundamental and basic decision of
this Court is Hanumant v. State of Madhya
Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 :
1953 Cri LJ 129] . This case has been
uniformly followed and applied by this Court
in a large number of later decisions up todate,
for instance, the cases of Tufail (Alias) Simmi
v. State of Uttar Pradesh [(1969) 3 SCC 198:
1970 SCC (Cri) 55] and Ramgopal v. State of
Maharashtra [(1972) 4 SCC 625: AIR 1972 SC
656].
(iii) Mahajan, J. has laid down in Hanumant
case [AIR 1952 SC 343 : 1952 SCR 1091 :
1953 Cri LJ 129] :
"It is well to remember that in cases where
the evidence is of a circumstantial nature, the
circumstances from which the conclusion of
guilt is to be drawn should in the first
instance be fully established, and all the facts
so established should be consistent only with
the hypothesis of the 2 (1984) 4 SCC 116
guilt of the accused. Again, the circum
stances should be of a conclusive nature and
tendency and they should be such as to
exclude every hypothesis but the one
proposed to be proved. In other words, there
must be a chain of evidence so far complete
as not to leave any reasonable ground for a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act must
have been done by the accused."
153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused can
be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court indicated
that the circumstances concerned "must or
should" and not "may be" established. There
is not only a grammatical but a legal
distinction between "may be proved" and
"must be or should be proved" as was held
by this Court in Shivaji Sahabrao Bobade v.
State of Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]
where the observations were made : [SCC
para 19, p. 807 : SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the
accused must be and not merely may be
guilty before a court can convict and the
mental distance between 'may be' and 'must
be' is long and divides vague conjectures from
sure conclusions."
(2) the facts so established should be
consistent only with the 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 beyond a reasonable doubt.
(iii) Raju @ Rajendra Prasad vs. State of
Rajasthan(LAW(SC) 2022-9-83)
In this judgment, the Hon'ble Supreme Court has
observed as under:
"7.3 In the case of G. Parshwanath Vs. State
of Karnataka, (2010) 8 SCC 593 in paras 23
and 24, it is observed and held as under :
"23. In cases where evidence is of a
circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn
should, in the first instance, be fully
established. Each fact sought to be relied
upon must be proved individually. However,
in applying this principle a distinction must be
made between facts called primary or basic
on the one hand and inference of facts to be
drawn from them on the other. In regard to
proof of primary facts, the court has to judge
the evidence and decide whether that
evidence proves a particular fact and if that
fact is proved, the question whether that fact
leads to an inference of guilt of the accused
person should be considered. In dealing with
this aspect of the problem, the doctrine of
benefit of doubt applies. Although there
should not be any missing links in the case,
yet it is not essential that each of the links
must appear on the surface of the evidence
adduced and some of these links may have to
be inferred from the proved facts. In drawing
these inferences, the court must have regard
to the common course of natural events and to
human conduct and their relations to the facts
of the particular case. The court thereafter
has to consider the effect of proved facts.
24. In deciding the sufficiency of the
circumstantial evidence for the purpose of
conviction, the court has to consider the total
cumulative effect of all the proved facts, each
one of which reinforces the conclusion of guilt
and if the combined effect of all these facts
taken together is conclusive in establishing
the guilt of the accused, the conviction would
be justified even though it may be that one or
more of these facts by itself or themselves
is/are not decisive. The facts established
should be consistent only with the hypothesis
of the guilt of the accused and should exclude
every hypothesis except the one sought to be
proved. But this does not mean that before
the prosecution can succeed in a case resting
upon circumstantial evidence alone, it must
exclude each and every hypothesis suggested
by the accused, howsoever, extravagant and
fanciful it might be. There must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the accused
and 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, signature or
the age of the writing in the document, the same shall
be referred to forensic laboratory of the State and
should not be send to private laboratory for securing
their opinion. This is to prevent the possible
manipulation in securing favourable reports and to
manipulate the final report to be filed in the said
investigations."
(v) Chunthuram vs. State of Chattisgarh
(Crl.A.No.1392/2011)
The Hon'ble Apex Court in the said judgment has
observed as under:
" 9. To establish the presence of Chunthuram at
the place of incident, the Courts relied on the Test
Identification Parade and the testimony of Filim Sai
(PW-3). The Test Identification evidence is not
substantive piece of evidence but can only be used, in
corroboration of statements in Court. The ratio in
Musheer Khan vs. State of Madhya Pradesh1 will have
a bearing on this issue where Justice A.K. Ganguly,
writing for the Division Bench succinctly summarised
the legal position as follows:
"24. It may be pointed out that
identification test is not substantive evidence. Such
tests are meant for the purpose of helping the
investigating agency with an assurance that their
progress with the investigation into the offence is
proceeding on right lines.
10. The infirmities in the conduct of the Test
Identification Parade would next bear scrutiny. The
major flaw in the exercise here was the presence of the
police during the exercise. When the identifications are
held in police presence, the resultant communications
tantamount to statements made by the identifiers to a
police officer in course of investigation and they fall
within the ban of section 162 of the Code. (See
Ramkishan Mithanlal Sharma vs. The State of Bombay)
11. The next important flaw is that while the
pahchan patra of the TIP mentions that three lungis
were presented, the related witness was shown only
one lungi for identification as per the own statement of
the witness Filim Sai (PW-3). Such infirmities would 2
(1955) 1 SCR 903 therefore, render the TIP unworthy of
acceptance, for supporting the prosecution.
201. Learned counsel Shri Vishnumurthy for
Accused No.11 / Suresh @ Suri contends that this
accused being convicted, was in incarceration but this
accused was arraigned as accused in the aforesaid
judgment of conviction and faced trial. When this
accused was in incarceration, it cannot be said that he
participated with other accused in the crime. Even
material secured by the I.O. during the course of
investigation did not facilitate 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 evidence forthcoming on the part of the
prosecution to prove the guilt of the accused. Despite of
which, the Trial Court has erroneously arrived at a
conclusion that the prosecution has proved the guilt
against the accused beyond all reasonable doubt.
Therefore, in these appeals, it requires to consider the
grounds urged in respect of the role of these accused
and to consequently set aside the judgment rendered by
the Trial Court in S.C.No.428/2013 dated 20.10.2020.
Consequent upon setting aside the judgment of
conviction, to acquit the accused of the offences leveled
against them.
203. Learned Spl.PP Sri Ashok N.Naik for
respondent - State in all these appeals has taken
contentions and also submitted in writing and also has
placed reliances in support of his arguments. He has
filed synopsis mentioning important dates of events. It
is contended that on 16.04.2010 accused No.12 became
Corporator vide Gazette notification as per Ex.P387.
Deceased Lingaraju filed affidavit against Accused Nos.8
and 12 on 18.06.2010 and 22.06.2010 as per Ex.P26
and Ex.P116. On 06.09.2010 deceased asked for police
protection from Accused as per Ex.P391. This document
also refers above shown Exs.P26 and 116. As per
Ex.P385 deceased Lingaraju filed complaint before the
Lokayukta authority on 23.06.2012. Ex.P27 is the
letter correspondence made by deceased to His
Excellency Governor seeking permission to prosecute
accused No.12. Complaint came to be filed before
Lokayukta against accused No.8 in PCR No.65/2012 as
per Ex.P349. Exs.P28 and 29 are the applications Form
A under the RTI Act seeking information regarding
action report against Accused Nos.8 and 12. Ex.P220 is
the FIR dated 08.11.2012. On 09.11.2012 Lokayukta
held raid / house search of accused Nos.8 and 12 as
per Ex.P223. Accused Nos.8 and 12 availed loan of
Rs.20 lakhs through accused No.12's brother and his
son PW.15 from BCC bank as per Exs.P102 and 103.
On 20.11.2012 at 6.45 deceased was done to death. On
20.11.2012 PW.1 lodged complaint Ex.P1 and
consequently FIR came to be registered. On 21.11.2012
W.P.47342/2012 GM-RES (PIL) was registered and this
High Court suo moto initiated proceedings in the matter
of death of Lingaraju. Ex.P127 is the inquest mahazar
conducted on 20.11.2012. Ex.P2 is the spot mahazar
under which dagger, its handle and MO.3 to 6. Ex.P17
is the seizure mahazar of blood stained clothes of PWs.1
and 2 where MO.1 and 2 were marked. On 22.11.2012
at 7.30 a.m. Accused No.6 Bhavani and Accused No.7
were arrested and their 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 recovered as per
MO.30. As per voluntary statement Ex.P.314 of accused
No.2, MO.29 one chopper was recovered. On the same
day, accused Nos.1, 2, 3, 4 lead the investigating team
near Saptagiri Dhaba and as per voluntary statement of
accused No.3 MO.31, MO.32 and MO.33 were
recovered. Accused No.4 has given voluntary statement
as per Ex.P316 and produced Rs.1,50,000/- two
bundles MO.27 and 28 which bears bank slips. On
26.11.2012 Accused No.5 as per his voluntary
statement Ex.P317 lead to his residence from Godrej
and produced Rs.1 lakh, 2 bundles, which bears bank
slips as per MOs.25 and 26. On 27.11.2012 at 8.45
a.m. Tata Sumo vehicle bearing Regn.No.KA-41-3600
was seized as per Ex.P124. MO.51 a sum of Rs.7000/-
was seized from the residence of accused No.1 as per
Ex.P156. As per Ex.P159 and voluntary statement of
Ex.P.318 of accused No.8 who lead to his house and
then accused No.12 produced mobile MO.43 of SIM
9449815395. On 30.11.2012 accused No.4 as per his
voluntary statement Ex.P316 lead the investigating
team and showed Maruthi Zen car bearing Regn.No.KA-
04 MA 224. On 01.12.2012 accused No.12 produced
mobiles of accused No.8 and the same were marked as
MOs.44 and 45. On 06.12.2012 accused No.10 as per
his voluntary statement Exs.P324 and 325 lead and
produced in his house two mobiles MOs.46 and 47 and
cash of Rs.5000/- MO.52. On 09.12.2012 accused No.9
as per his voluntary statement Ex.P331 lead and
produced from his house MO.53 Rs.47,000/- and one
Nokia mobile MO.48 with SIM. On 12.12.2012 accused
No.12 was arrested at Tanjavur who was with her
brother - PW.12 Krishnamurthy. On 13.12.2012 PW.12
Krishnamurthy produced MO.49 bearing SIM
9945850261 which was used by accused No.12. On
01.01.2013 the voluntary statement of PW.1 as per
Ex.P19 and voluntary statement of PW.2 as per Ex.P73
were recorded. On 07.01.2013 test identification parade
and on 08.02.2013 photo identification parade were
conducted. On 12.02.2013 PW.54 who collected the call
details submitted analysis report to the PW.90 who is
the IO. On 06.04.2013 about the compromise in
C.C.No.16879/2013 PW.1 who is the wife of deceased
gave her evidence in the said case. On 08.04.2014
petition in W.P.No.17847/2014 was filed by PW.1 -
Smt.Umadevi for removal of Spl.PP since she did not
cooperated for compromise with the accused. On
06.05.2014 PW.1 gave her evidence in
C.C.No.16879/2013 stating that accused No.8
committed the murder of her husband as per the
prosecution case but pending cross examination the
case was 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 this country have a fundamental right to have a clean
incorruptible judiciary, legislature, executive and other
organs - there is corresponding duty to this right to
expose corruption wherever found - this duty permits
citizens to act as agent provocateurs to bring out and
expose and uproot the corruption.
(iii) In respect of appreciation of evidence the
judgment of the Hon'ble Supreme Court in the case of
M.G.Agarwal vs. State of Maharashtra (1963 AIR (SC)
200) wherein it is held as under:
18. There is another point of law which must be
considered before dealing with the evidence in this
case. The prosecution case against accused No. 1
rests on circumstantial evidence. The main charge
of conspiracy under section 120 B is sought to be
established by the alleged conduct of the
conspirators and so far as accused No. 1 is
concerned, that rests on circumstantial evidence
alone. It is a well established rule in criminal
jurisprudence that circumstantial evidence can be
reasonably made the basis of an accused person's
conviction if it is of such a character that it is wholly
inconsistent with the innocence of the accused and
is consistent only with his guilt. If the
circumstances proved in the case are consistent
either with the innocence of the accused or with his
guilt, then the accused is entitled to the benefit of
doubt. There is no doubt or dispute about this
position. But in applying this principle, it is
necessary to distinguish between facts which may
be called primary or basic on the one hand and
inference of facts to be drawn from them on the
other. In regard to the proof of basic or primary
facts the Court has to judge the evidence in the
ordinary way, and in the appreciation of evidence
in respect of the proof of these basic or primary
facts there is no scope for the application of the
doctrine of benefit of doubt. The Court considers the
evidence and decides whether that evidences
proves a particular fact or not. When it is held that
a certain fact is proved, the question arises whether
that fact leads to the inference of guilt of the
accused person or not, and in dealing with this
aspect of the problem, the doctrine of benefit of
doubt would apply and an inference of guilt can be
drawn only if the proved fact is wholly inconsistent
with the innocence of the accused and is consistent
only with his guilt. It is in the light of this legal
position that the evidence in the present case has to
be appreciated.
(iv) Bhajju @ 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 during cross - the witnesses were neighbors of
accused - probably they turned hostile out of sympathy
with accused - however, the Court placed reliance their
statements in examination -in - chief to the extent it
supported the case and convicted the accused.
"Now, we shall discuss the effect of hostile
witnesses as well as the worth of the defence put
forward on behalf of the appellant/accused. Normally,
when a witness deposes contrary to the stand of the
prosecution and his own statement recorded under
Section 161 of the Cr.P.C., the prosecutor, with the
permission of the Court, can pray to the Court for
declaring that witness hostile and for granting leave to
cross-examine the said witness. If such a permission is
granted by the Court then the witness is subjected to
cross-examination by the prosecutor as well as an
opportunity is provided to the defence to cross-examine
such witnesses, if he so desires.
It is also now a settled cannon of criminal
jurisprudence that the part which has been allowed to be
cross-examined can also be relied upon by the
prosecution. These principles have been encompassed in
the judgments of this Court in the cases :
a. Koli Lakhmanbhai Chanabhai v. State of Gujarat
(1999) 8 SCC 624
b. Prithi v. State of Haryana (2010) 8 SCC 536
c. Sidhartha Vashisht @ Manu Sharma v. State
(NCT of Delhi) (2010) 6 SCC 1
d. Ramkrushna v. State of Maharashtra (2007) 13
SCC 525
20. PW2 and PW3 were the persons who had met
the deceased first after she was put on fire. They
were not the eye-witnesses to the occurrence. It is
an admitted case that they were the first persons to
meet the deceased after she suffered the burn
injuries and had taken her to the hospital. This was
their consistent version when stated before the
police and even before the court. Contrary to their
statement made to the Investigating Agency, in the
Court, they made a statement that the deceased
had told them that she had caught fire by chimney
and her burn injuries were accidental. This was
totally contrary to their version given to the police
where they had stated that she had told them that
Bhajju had poured kerosene on her and put her on
fire. To the extent that their earlier version is
consistent with the story of the prosecution, it can
safely be relied upon by the prosecution and court.
The later part of their statement, in cross-
examination 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
society and have to be condemned by imposing
deterrent punishment.
(B) Rakesh Kumar @ Babli vs. State of Haryana (1987
AIR SC 690)
Indian Penal Code, 1860, Section 302 - Incident of
murder occurred to street in night hours - plea that
accused could not be identified by witnesses due to
insufficiency of light - plea not tenable - light may
be insufficient but not all that dark so that accused
could not have been identified.
(vii) With regard to proof of seizure mahazaras of supari
amount, blood stained weapons, blood stained clothes,
FSL reports connecting to accused/offence and
evidentiary value attached to police officer's evidence
when panchas turned hostile, learned Spl.PP has relied
on the following reliances:
(A) Rameshbhai Mohanbhai Koli v. State of
Gujarat (SC) 2011 AIR (SC) (Cri) 120
In C. Muniappan & Ors. vs. State of Tamil Nadu,
JT 2010 (9) SC 95, this Court, after considering all
the earlier decisions on this point, summarized the
law applicable to the case of hostile witnesses as
under:
"70.1 The evidence of a hostile witness cannot be
discarded as a whole, and relevant parts thereof
which are admissible in law, can be used by the
prosecution or the defence.
70.2 In the instant case, some of the material
witnesses i.e. B. Kamal (PW.86); and R. Maruthu
(PW.51) turned hostile. Their evidence has been
taken into consideration by the courts below
strictly in accordance with law.
70.3 Some omissions, improvements in the
evidence of the PWs have been pointed out by the
learned Counsel for the appellants, but we find
them to be very trivial in nature.
71. It is settled proposition of law that even if
there are some omissions, contradictions and
discrepancies, the entire evidence cannot be
disregarded. After exercising care and caution
and sifting through the evidence to separate truth
from untruth, exaggeration and improvements, the
court comes to a conclusion as to whether the
residuary evidence is sufficient to convict the
accused. Thus, an undue importance should not
be attached to omissions, contradictions and
discrepancies which do not go to the heart of the
matter and shake the basic version of the
prosecution's witness. As the mental abilities of a
human being cannot be expected to be attuned to
absorb all the details of the incident, minor
discrepancies are bound to occur in the
statements of witnesses.
(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 be given preference over the
primary statement of the witnesses in respect of
manner of injuries suffered by them. Only because
in certain aspects part of statement has been
disbelieved, entire testimony of witnesses cannot
be discarded.
(D) Ronny @ Ronald James Alwaris v. State of
Maharashtra (SC) 1998 AIR (SC) 1251.
In this judgment Section 9, Evidence Act,
Section 302 - IPC - murder - identification parade -
identification of accused at trial is a relevant piece
of evidence under Section 9 of Evidence Act - It is
inherently of weak character - evidence of
identification in test identification is not a
substantive evidence is only a corroborative
evidence - it falls within the realm of investigation -
substantive evidence is the statement of witness
made in the court.
(E) Mohd. Aslam vs. State of Maharashtra
(2001 (9) SCC 362)
In this judgment Section 302 of IPC, Sections 9
and 3 - murder - identification - murder at 8.15
p.m. on 24.2.1994 at Kala Ghoda Mumbai - not a
time when the city would go dark - witnesses could
have seen the assailants in the light of city - no
serious lapse in the identification parade conducted
by the Magistrate - accused identified in the Court
as well - no reason to disbelieve testimony of
witnesses.
(F) Mohan Lal and another vs. Ajit Singh and
another (1978 AIR (SC) 1183)
Section 313 of Cr.P.C., Evidence Act, 1872,
Section 3 - Statement of accused - evidence on
record disproving exculpatory part of the statement
part, which accords with the evidence, permissible
to accept and act upon.
(viii) In respect of dying declaration - On the basis
of Ex.P.26 affidavit dated 18.06.2010 to 19.11.2012 on
which date PW.87 - Dhruva Kumar, advocate heard
from deceased regarding "life threat" leads to the
circumstances of transactions resulting in death as per
Section 32(1) of Indian Evidence Act. The Hon'ble
Supreme Court has addressed this issue in the case of
Sudhakar vs. State of Maharashtra (2000 AIR (SC)
2602), Kans Raj vs. State of Punjab and others (2000
AIR (SC) 2324)
(ix) In respect of 65B Certificate the reliance of
Hon'ble Supreme Court in the case of Anvar P.V. vs.
P.K.Basheer and others at para 24 it is held as under:
" 24. The situation would have been different
had the appellant adduced primary evidence, by
making available in evidence, the CDs used for
announcement and songs. Had those CDs used for
objectionable 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
not speak of the stage at which such certificate must be
furnished to the Court. In Anvar P.V. (supra), this Court
did observe that such certificate must accompany the
electronic record when the same is produced in
evidence. We may only add that this is so in cases
where such certificate could be procured by the person
seeking to rely upon an electronic record. However, in
cases where either a defective certificate is given, or in
cases where such certificate has been demanded and is
not given by the concerned person, the Judge
conducting the trial must summon the person/persons
referred to in Section 65B(4) of the Evidence Act, and
require that such certificate be given by such
person/persons. This, the trial Judge ought to do when
the electronic record is produced in evidence before him
without the requisite certificate in the circumstances
aforementioned. This is, of course, subject to discretion
being exercised in civil cases in accordance with law,
and in accordance with the requirements of justice on
the facts of each case. When it comes to criminal trials,
it is important to keep in mind the general principle that
the accused must be supplied all documents that the
prosecution seeks to rely upon before commencement of
the trial, under the relevant sections of the CrPC."
(x) In respect of conspiracy, the case of
K.R.Purushothaman vs. State of Kerala (2006(12)
SCC 631 it is held as under:
"To constitute a conspiracy, meeting of mind of
two or more persons for doing an illegal act or an act by
illegal means is the first and primary condition and it is
not necessary that all the conspirators must know each
and every detail of conspiracy. Neither it is necessary
that every one of the conspirators takes active part in
the commission of each and every conspiratorial acts.
The agreement amongst the conspirators can be
inferred by necessary implications. In most of the cases,
the conspiracies are proved by the circumstantial
evidence, as the conspiracy is seldom an open affair.
The existence of conspiracy and its objects are usually
deducted from the circumstances of the case and the
conduct of the accused involved in the conspiracy. While
appreciating the evidence of the conspiracy, it is
incumbent on the Court to keep in mind the well-known
rule governing circumstantial evidence viz., each and
every incriminating circumstance must be clearly
established 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 beyond
that."
205. On all these grounds, it is contended by the
learned Spl. PP Shri Ashok N. Naik that the impugned
judgment of conviction rendered by the Trial Court in
S.C.No.428/2013 dated 18.10.2020 being just and
proper, needs no interference in these appeals. Hence,
he prays for dismissal of the appeals.
206. In the context of contentions made by the
learned Senior Counsel Shri B.V. Acharya and Shri
Vishnumurthy for Accused Nos.1, 2 and 3, the learned
Senior counsel Shri C.V. Nagesh and Shri Raghavendra
K for Accused Nos.8 and 12 inclusive of Shri Ajith
Anand Shetty for Accused No.4, Shri Satyanarayana
Chalke for Accused Nos.5, 6 and 7, learned counsel Shri
M. Devaraja for Accused No.9 & 10 and learned counsel
Shri Vishnumurthy for Accused No.11 and the counter
arguments addressed extensively by the learned Spl.PP
Shri.Ashok N Naik for the respondent / State in these
matters and on perusing 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, it is
relevant to state that Accused Nos.8 and 12 had
hatched a criminal conspiracy along with the other
accused persons and are said to have hired Accused
Nos.1, 2 and 3 to eliminate deceased Lingaraju who was
an RTI Activist and so also an Editor of
"Mahaprachanda" patrika.
207. Accused Nos.1 to 3 are said to be supari
killers and as such, in order to pay the said supari
killers, Accused No.12 / Gowramma had pledged her
gold ornaments through her brother PW-15 / Revanna
and his son Hemanth at Bengaluru City Co-operative
Bank, Avalahalli and are said to have drawn an amount
of Rs.9,74,000/- each after deducting the share
amount, appraiser charge and so also application fee.
The said amount was handed over by Revanna to
Accused Nos.8 and 12. Whereas Exhibits P21 to P24
reveals that Accused No.8 / C. Govindaraju and
Accused No.12 / Gowramma's daughter's marriage was
arranged at Palace Grounds, Bengaluru as on
26.11.2012. On 19.11.2012, loan was borrowed by PW-
15 and so also his son from the Bangalore City Co-
operative Bank. Lokayuktha Police had conducted raid
on the house of Accused Nos.8 and 12 as on
09.11.2012. Lingaraju being an RTI Activist and an
Editor of 'Mahaprachanda', was murdered as on
20.11.2012.
208. 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 indicating that accused persons had
involved in committing the murder of deceased
Lingaraju and also that they received supari amount
from Accused No.8 / C. Govindaraju to eliminate the
deceased Lingaraju, an RTI Activist and the Editor of
'Mahaprachanda', as contended by the learned Spl. PP.
210. PW-54 / Manoj M. Hoovale being an I.O. after
analyzing the downloaded documents into laptop
relating to digital information, had taken print out in
four volumes (CDR). PW-54 has given the analysis
report under Section 65-B of the Indian Evidence Act
which is marked as Exhibit P-295.
211. Exhibit P-273 reveals that mobile
No.9449815395 belonged to Accused No.12 /
Gowramma. As regards Exhibit P-274, call details
timings shows that around 7.44 a.m., 7.50 a.m., 8.04
a.m., PW-7 / Prakash, being the driver of Accused
No.8/ C. Govindaraju , had spoken with Accused No.12
/ Gowramma. The said Gowramma's mobile number
was in conversation with her driver's mobile number
9945850261. Exhibit P226 and Exhibit P228 indicates
the name of Accused No.4 and Accused No.11 as
rowdysheeters. After committing the murder of
Lingaraju, an RTI Activist and the Editor of
'Mahaprachanda', the accused persons are said to have
stayed in Gopinatham Mistry Trial Camp. PW-19 /
Soundar Raj has stated in his evidence that he was
working in the said lodge and he has identified Accused
No.3 who had stayed in the dormitory on 20.11.2012.
After committing the murder of the deceased Lingaraju,
accused persons are said to have travelled to
Hogenaikal falls in Indica car and Tata Sumo car and
stayed in the said lodge. But there is no worthwhile
evidence on the part of the prosecution as contended by
the learned counsel for the accused.
212. The prosecution has given more credentiality
to the motive factor and also dying declaration termed
as an affidavit of Exhibit P-26 and Exhibit P-116. The
contents of the affidavit reveals that prior to the death of
Lingaraju, his life was under threat. In order to prove
the motive factor and dying declaration, the prosecution
has relied on the evidence of PW-22, PW-69 and PW-87
and has banked upon the evidence of those witnesses
inclusive of the materials got marked at Exhibits P26,
P116, P39, P27, P28, P29, P349, P222, P220, P223 and
Exhibit P391. The prosecution has proved the contents
in the mahazar through the evidence of PW-18, PW-15
in respect of the mahazar at 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 evidence, or whose
attendance cannot be procured without an
amount of delay or expense which, under the
circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in
the following cases:--
(1) when it relates to cause of death. --
When the statement is made by a person as to
the cause of his death, or as to any of the
circumstances of the transaction which resulted
in his death, in cases in which the cause of that
person's death comes into question. Such
statements are relevant whether the person who
made them was or was not, at the time when
they were made, under expectation of death, and
whatever may be the nature of the proceeding in
which the cause of his death comes into question.
(2) or is made in course of business. --
When the statement was made by such person in
the ordinary course of business, and in particular
when it consists of any entry or memorandum
made by him in books kept in the ordinary course
of business, or in the discharge of professional
duty; or of an acknowledgment written or signed
by him of the receipt of money, goods, securities
or property of any kind; or of a document used in
commerce written or signed by him; or of the date
of a letter or other document usually dated,
written or signed by him.
(3) or against interest of maker. --When the
statement is against the pecuniary or proprietary
interest of the person making it, or when, if true,
it would expose him or would have exposed him
to a criminal prosecution or to a suit for damages.
(4) or gives opinion as to public right or
custom, or matters of general interest. --When the
statement gives the opinion of any such person,
as to the existence of any public right or custom
or matter of public or general interest, of the
existence of which, if it existed he would have
been likely to be aware, and when such
statement was made before any controversy as to
such right, custom or matter had arisen.
(5) or relates to existence of relationship. --
When the statement relates to the existence of
any relationship 25 [by blood, marriage or
adoption] between persons as to whose
relationship 25 [by blood, marriage or adoption]
the person making the statement had special
means of knowledge, and when the statement
was made before the question in dispute was
raised.
(6) or is made in will or deed relating to
family affairs. --When the statement relates 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 marriage invitation card
to Lingaraju, Accused No.8 / C. Govindaraju had
showed the said Lingaraju to Accused Nos.4, 5, 7 and
11. It is stated that Accused Nos.8 and 12 had hatched
a criminal conspiracy with other accused persons and
also secured the services of supari killers namely
Accused Nos.1 to 3 in order to eliminate Lingaraju, an
RTI Activist and the Editor of 'Mahaprachanda'. As
according to the criminal conspiracy hatched among
accused Nos.8 and 12 with other accused, accordingly
on 19.11.2012 at Palace Lodge in Room Nos.16 and 17
situated at Ramanagara, accused nos.1, 2, 3, 4, 5, 6
and 10 had conspired together and discussed to
eliminate Lingaraju and therefore on the same day they
were staying in the said lodge. But according to the
conspiratorial meeting held among them, as on
20.11.2012 at around 4.30 a.m., they left the Palace
Lodge at Ramanagara and asked Accused No.7 to wait
near Vijayanagara Service Station. Subsequently,
Accused Nos.1 to 5 went in an autorickshaw bearing
No.KA-05/AA-2742 of Accused No.4 by holding deadly
weapons and Accused Nos.6 and 10 came in a Honda
vehicle bearing No.KA-01/ER-6249 and reached
Bhakthamarkandeya Layout at around 6.45 a.m. Near
a public tap, deceased Lingaraju was seen collecting
water from a public tap. Accused Nos.1, 2 and 3 are
said to have assaulted him with means of chopper and
dagger and caused his death on the spot. The wife of
Lingaraju namely Smt. Uma Devi / PW-1 and their son
Karthik / PW-2 had made efforts to save Lingaraju from
their clutches. But Accused No.2 is said to have shown
a chopper and caused life threat to them. These are the
evidence which have been considered by the Trial Court
to render a conviction judgment. But there is no
worthwhile evidence let in by the prosecution to prove
the guilt against Accused Nos.1, 2 and 3 inclusive of
Accused Nos.8 and 12 and so also Accused Nos.4 to 7
and 9 to 11.
Whereas PW-1 and PW-2 are the star witnesses
but they have given a go-by to the version of the
complaint at Exhibit P1 and their statements as
recorded under Section 164 of the Cr.P.C. which are
marked as Exhibits P-19 and P-73.
214. Learned Senior Counsel Shri B.V. Acharya
for Accused Nos.1 to 3 and learned Senior counsel Shri
C.V. Nagesh for Accused Nos.8 and 12 and so also the
counsel on record for all other accused, have taken us
through the evidence of PW-1 / Uma Devi who is none
other than 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 used the
recovered vehicles for the said purpose. Further, the
Accused No.8 / C. Govindaraju had given supari
amount to commit the murder of Lingaraju, his relative
by hatching criminal conspiracy by staying in
Ranganatha Hotel. These are all the circumstances as
appearing against the accused according to paragraph
229 of the impugned judgment of acquittal rendered by
the Trial Court. But Exhibit P1 reveals that deceased
Lingaraju was an Editor of 'Mahaprachanda' newspaper
and also an RTI Activist. Though Accused No.12 /
Gowramma was the Corporator of Azad Nagar Ward in
Chamarajpet, Accused No.8 / C. Govindaraju being the
husband of Accused No.12 was acting as if he was the
Corporator of that area on behalf of Accused No.12.
216. It is stated that Lingaraju had filed a
complaint against Accused Nos.8 and 12 before the
Lokayuktha police to conduct a raid. Accordingly,
Lokayuktha police having collected sources, had raided
the house of Accused Nos.8 and 12 as on 09.11.2012.
Therefore, it is stated that vengeance developed in
between Accused Nos.8 & 12 and deceased Lingaraju.
Therefore, motive factor has been assigned to prove the
enmity between the deceased and Accused No.8. It is
also revealed that in the year 2011-12, deceased
Lingaraju and defeated candidates of BBMP election had
gone to PW-87 / Druvakumar and requested him to
draft a complaint in view of the fact that Accused Nos.8
and 12 had submitted a false affidavit before the
Election Commission at the time of filing nomination to
Corporation Election. Accordingly, PW-87 had drafted a
complaint and had given it to deceased Lingaraju, which
was filed before the Lokayuktha and the BBMP. For
that reason also enmity developed between deceased
Lingaraju and Accused No.8.
217. PW-26 in his evidence has stated that the
deceased Lingaraju, an RTI Activist and the Editor of
'Mahaprachanda' had lodged a complaint against him
before the BBMP regarding encroachment of lake and he
had also lodged a complaint against power loom owners.
In this regard, Accused No.8 / C. Govindaraju being a
relative of Lingaraju, had tried to pacify the quarrel
between the power loom owners and Lingaraju.
However, Lingaraju had not heeded to the advise of
Accused No.8 / C. Govindaraju.
218. It is stated that deceased Lingaraju had
approached PW-87 / Druvakumar saying that he
intended to file a complaint against the owners of the
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.116 dated
22.06.2010 against Gangadhar and Gopal who had
encroached the Government Rajakaluve and graveyard.
In the said affidavit he has also mentioned that there
was threat to his life from the power loom owners as
well as from Accused No.8 and others.
220. Learned Spl. PP Shri Ashok N. Naik has
contended that Exhibits P.26 and P.116 which were
filed by the deceased Lingaraju are to be termed as
dying declaration and accordingly he has referred to
Section 32 of the Indian Evidence Act, 1872 relating to
the concept of 'dying declaration'.
221. Though Exhibits P.26 and P.116 are
notarized affidavits which have been filed by deceased
Lingaraju, however, having regard to the concept of
Section 32 of the Indian Evidence Act, 1872, it cannot
be said that the affidavit filed by the deceased Lingaraju
is to be termed as dying declaration, merely because he
has filed a notorised affidavit relating to extending life
threat to him by the persons stated in the affidavits.
Unless there are some specific materials in terms of
statement, that is a dying declaration made by the
deceased Lingaraju when he was about to die, it cannot
be termed as a dying declaration. In the instant case,
Exhibits P.26 and P.116 which are notorized affidavits
have been filed by deceased Lingaraju. Therefore, it
cannot be said that it is a dying declaration and
consequently, the contention made by the learned Spl.
PP Shri Ashok N. Naik in this regard, does not hold any
substance.
222. The prosecution has got marked Exhibits
P.387, P.382, P.26, P.116, P.385, P.27, P.349, P.28,
P.29, P.22 and Exhibit P.220, P.23 and Exhibit P.391
are the exhibits that were got marked on the part of the
prosecution relating to motive factor in order to
eliminate deceased Lingaraju. But at a cursory glance
of the evidence of PW-22, PW-26, PW-69 and PW-87 in
the examination-in-chief and also cross-examination, it
is seen that they do not corroborate with any other
independent evidence of PW-1 / Uma Devi, or PW-2 /
Karthik or with PW-8 / Arjun. Though these witnesses
have been subjected to examination on the part of the
prosecution, they did not absolutely support their case
relating to eliminating the deceased Lingaraju as
narrated in the complaint at Exhibit P1 and so also the
spot mahazar at Exhibit P2 conducted by PW-81 in the
presence of panch witnesses. During the mahazar, a
steel dagger in the shape of knife 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 Bank but had later resigned the said job and
started working as an Editor of 'Mahaprachanda'
newspaper. At the time of murder of her husband, he
was an Editor. But on the date of the incident narrated,
she came to know that her husband was an RTI Activist
and on the date of the incident, that is on the date of
eliminating her husband, the news of murder was
telecasted in the Television at 7.00 a.m. These are the
evidence given by PW-1, but she did not withstand the
versions of her complaint at Exhibit P1. On 20.11.2012
at around 6.45 a.m., PW-1 / Uma Devi and her
husband Lingaraju came down from their house and
her husband had gone to fetch water from the public
tap for washing the staircase of their house, the
distance of the stair case from the public tap was about
100 ft. But when she was coming down from the stair
case, she found that three persons had surrounded her
husband and were assaulting him. When she rushed
there, they are said to have ran away from the place and
that she had shouted asking Karthik to come early.
These are the evidence on the part of the prosecution.
PW-1 has been subjected to examination thoroughly
relating to Exhibit P1 of the complaint but she did not
support the case of the prosecution. She has given a
go-by to the version of her complaint at Exhibit P1
inclusive of the contents of the mahazar at Exhibit P2.
This mahazar was conducted in the presence of PW-1 /
Uma Devi. She has identified the spot and the dead
body of her husband marked as Exhibit P3 and Exhibit
P16.
224. PW-1 / Uma Devi and her son PW-2 /
Karthik had given a statement as contemplated under
Section 164 of the Cr.P.C., which is marked as Exhibit
P19 and also statement of her son Karthik and so also
got marked by recording statement under Section 164
Cr.P.C. PW-1 / Uma Devi and her son PW-2 / Karthik
did not support the case of the prosecution as regards
the contents of their statements made under Section
164 of the Cr.P.C. PW-1 / Uma Devi was summoned to
Parappana Agrahara Jail whereby she had identified the
persons being arraigned as accused. Photos of the
accused persons were marked at Exhibits P35 to P38.
Photos of Accused Nos.1 to 5 also appear. But she did
not give evidence on the part of the prosecution to
identify the accused persons even though identification
parade was held by PW-52, the Taluk Executive
Magistrate.
225. PW-2 / Karthik, son of 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 and also scene of crime which is
marked as Exhibits P3 to P16.
226. PW-52 being the Taluk Executive Magistrate
had given evidence on the part of the prosecution
relating to conducting test identification parade by
securing PW-1 / Uma Devi and also PW-2 / Karthik.
The identification parade of five accused persons was
conducted on 29.12.2012 at 3.00 p.m. at Parappana
Agrahara Jail. As on 01.01.2013 they had conducted
test identification parade and in that regard, the
Chamarajpet police had given a requisition to the
aforesaid Taluk Executive Magistrate. Thereafter she
had sent another notice dated 03.01.2013 to witnesses
Smt.Umadevi and Karthik with regard to conducting the
test identification parade of accused persons on
07.01.2013 by fixing the time and place. She prepared
the document regarding test identification parade and
identification of accused persons by Umadevi and
obtained the signature of Umadevi on that document,
the same is marked as Ex.P.75, the signature of
Umadevi is marked as Ex.P.75(b). Further, PW-52 /
Taluk Executive Magistrate had called another witness
namely PW-2 / Karthik for identification of accused
persons. After the said Karthik identified accused
persons, she marked the said document as Exhibit P74
and obtained his signature at Exhibit P-74(a). Though
the said Test Identification Parade was conducted by
PW-52 and PW-1 / Uma Devi and PW-2 / Karthik had
identified the accused persons, however, both of them
have not withstood their statements given before the
Investigating Officer and even as regards Exhibits P.74
and P.75 relating to identification of the accused
persons by them.
227. At a cursory glance of the evidence of PW-1,
PW-2, PW-52, PW-57, PW-64 and PW-88 in respect of
identifying the accused persons who are alleged to have
involved in committing the murder of the deceased, it is
seen that their evidence does not find corroborated with
the independent evidence or even with the evidence of
PW-1 / Uma Devi, the author of the complaint at
Exhibit P1 or even with the evidence of PW-2 / Karthik,
the son of deceased Lingaraju.
228. PW-1 / Uma Devi and PW-2 / Karthik have
given statements before the Judicial Magistrate as
under Section 164 of the Cr.P.C. and their statements
have been marked at Exhibits P.19 and P.73
respectively. Even though they have given their
statements relating to assaulting the deceased
Lingaraju 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 MO-54 relating
to proving the guilt against the accused, but at a
cursory glance of the evidence of PW-1 and PW-2 and so
also evidence of PW-45 / Dr. J. Kantharaju and the
evidence of PW-46 / Dr. Pradeep Kumar inclusive of the
evidence of PW-53 / Malathi D who is the Scientific
Officer and so also the evidence of PW-81 /
Shivamalavaiah, with regard to the injuries inflicted
over the person of the deceased Lingaraju, it is found
that their evidence are camouflaged and there is no
corroborative evidence on the part of the prosecution to
prove the guilt against the accused. Further, their
evidence is not corroborated with any other independent
evidence relating to eliminating the deceased Lingaraju
as narrated in the complaint at Exhibit P1. But it is
relevant to refer to the materials which were collected by
the I.O. during the course of investigation. On
26.11.2012, the marriage of the daughter of Accused
Nos.8 and 12 was fixed at Palace Grounds, Bengaluru.
Four to five days prior to the date of marriage of their
daughter, Accused No.8 had gone to the house of
deceased Lingaraju along with Accused Nos.4, 5, 7 and
11 to extend the marriage invitation of their daughter.
Accused No.8 / C. Govindaraju and deceased Lingaraju,
RTI Activist were relatives and were acquainted with
each other prior to the incident. Further, Accused
Nos.8 and 12 had been to the house of Lingaraju to
extend the marriage invitation card of their daughter. It
further indicates that Lingaraju and Accused No.8 were
in talking terms with each other, which is also one of
the circumstantial evidence. But as regards the motive
factor to indicate that there was an animosity developed
between them and conspiratorial meetings were held
among the persons arraigned as accused to eliminate
the deceased Lingaraju by engaging supari killers, there
is no evidence forthcoming on the part of the
prosecution to prove the guilt against the accused.
There is no cogent, corroborative and positive evidence
relating to the said aspect on the part of the
prosecution.
230. Based upon the complaint at Exhibit P1 filed
by PW-1, the case in Cr.No.238/2012 came to be
registered by the Chamarajpet police for offences
initially under Section 302 read with Section 34 of the
IPC. PW-1 / Uma Devi even though she being the
author of the complaint and also being the wife of the
deceased, she has not supported the case of the
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 to the
accused. In all these appeals pertaining to Accused
Nos.1 to 12, though several witnesses have been
subjected to examination including the material
witnesses namely PW-1 and PW-2 who are eye-
witnesses, it is seen that both PW-1 and PW-2 have
given a go-by to the versions of their statements
inclusive of the substance in the FIR said to be recorded
by the Investigating Agency. Even the official witnesses
who have been examined on the part of the prosecution
relating to drawing of mahazar and also for having
seized material objects marked as MO-1 to MO-54, but
benefit of doubt has accrued on the part o the
prosecution. In the criminal justice delivery system,
when doubt arises in the mind of the Court, the said
benefit shall be extended to the accused alone.
232. PWs 1 and 2 being eye-witnesses on the part
of the prosecution though have given their evidence as
regards the murder Lingaraju, wherein his body was
lying at the scene of crime, but they have not supported
the case of the prosecution to any extent and the same
is revealed in their evidence itself and in the evidence
relating to the Test Identification Parade conducted by
PW-52 / Taluk Executive Magistrate. Even at a cursory
glance of the entire evidence on the part of the
prosecution, it indicates that the prosecution did not
facilitate worthwhile evidence to convict the accused for
the alleged offences. Viewed from any angle, the
prosecution though had adduced evidence by subjecting
to examination in all PWs 1 to 90 and several
documents have been got marked inclusive of the
material objects and so also had recorded voluntary
statements of the accused and even disclosure
statements of the accused, it is on the statement of Velu
at Exhibit 310, Voluntary statement of the accused
Umashankar @ Bhavani at Exhibit P311, voluntary
statement of the accused Raghavendra @ Raghu marked
at Exhibit P313, and further voluntary statement of the
aforesaid accused marked at Exhibit P313(a), voluntary
statement of the accused R. Shankar at Exhibit P314,
further voluntary statement of the accused
Raghavendra @ Raghu at Exhibit P314(a), voluntary
statement of Rangaswamy at Exhibit P.315, voluntary
statement of the accused Chandra at Exhibit P.316,
voluntary statement of accused Shankar at Exhibit
P.317, voluntary statement of the accused C.
Govendaraju at Exhibit P.318, voluntary statement of
the accused Jaheer 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 failed to bring any iota of
worthwhile evidence to hold that appellants / Accused
Nos.1 to 12 guilty of the alleged offences and that they
are responsible for eliminating the deceased Lingaraju,
an RTI Activist and the Editor of 'Mahaprachanda'
newspaper.
233. PWs 1 and 2 who are the star witnesses on
the part of the prosecution being the wife and son of the
deceased Lingaraju, have turned hostile and have not
supported the case of the prosecution. Even at a
cursory glance of the evidence of PW-89 who provided a
CD containing the sting operation conducted under the
head Yudha Khanda, it completely discloses that
primary evidence has not been produced. Except
marking Exhibit P357 being the CD which is a
secondary evidence which is inadmissible, PW-89 had
not disclosed the contents of the said CD in his
examination-in-chief and the Trial Court in its judgment
has also not disclosed the contents of the said CD. The
fact that secondary evidence being inadmissible in law
has been completely ignored by the Trial Court to arrive
at an erroneous conclusion by rendering conviction
against accused persons.
234. Though the prosecution has subjected to
examination several witnesses such as PW-1 to PW-90
inclusive of official witnesses, but several witnesses
have given a go-by to the versions of their statements
and they have been examined as PW-1, 2, 4 to 12, 15 to
17, 21, 22, 28 to 44, 47 to 49, 55, 56, 59, 62, 63, 68,
82, 83, 85 and 86. Whereas, at a cursory glance of the
evidence of these witnesses, none of the independent
witnesses have supported the case of the prosecution to
incriminate any circumstances against the appellants /
accused. In spite of that, the Trial Court has
erroneously arrived at a conclusion to convict the
appellants / accused for offences punishable under
Section 109 read with Section 149 and Section 302 read
with Section 149 of the IPC, 1860 and so also for other
offences for which charges were leveled against them.
235. Out of ninety witnesses even though 44
witnesses have given their evidence on the part of
prosecution, but all of them are official witnesses and
none of the evidence of those witnesses is directly
incriminating against the appellants / accused.
Further, even though documentary evidence has been
adduced, there are no clinching circumstances against
the appellants / accused in order to come to the
conclusion that the accused 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, we proceed to pass the following:
ORDER
These Criminal Appeals namely Crl.A.1068/2020,
Crl.A.No.53/2021, Crl.A.No.54/2021 and
Crl.A.No.118/2021 filed by the accused / appellants in
the respective appeals, are hereby allowed.
Consequently, the judgment of conviction dated
28.10.2020 and order of sentence dated 29.10.2020
rendered by the LVIII Addl. City Civil and Sessions
Judge (CCH-59), Bengaluru City, in S.C.No.428/2013 is
hereby set-aside. Consequent upon setting aside the
conviction judgment, Accused Nos.1 to 12 / appellants
in the respective appeals are hereby acquitted of the
offences for which they were held charge.
However, Accused No.1 / Rangaswamy @ Ranga,
Accused No.2 / R. Shankar, Accused No.3 /
Raghavendra @ Raghu, Accused No.4 / Chandra,
Accused No.5 / Shankar @ Gunda, Accused No.6 /
Umashankara @ Bhavani, Accused No.7 / Velu,
Accused No.9 / Loganatha, Accused No.10 / Jaheer,
Accused No.11 / Suresh @ Suri @ Surya are in
incarceration from the date of their arrest. Therefore,
the concerned Jail Authorities are directed to set
Accused Nos.1 to 7 and 9 to 11 at liberty forthwith, if
they are not required in any other case. Ordered
accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
KS / DKB
