Karnataka High Court
Sri Shiva vs State Of Karnataka By on 4 July, 2024
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NC: 2024:KHC:25117-DB
CRL.A No. 1734 of 2022
C/W CRL.A No. 1001 of 2019
CRL.A No. 352 of 2020
CRL.A No. 1296 of 2021
CRL.A No. 499 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 1734 OF 2022
C/W
CRIMINAL APPEAL NO. 1001 OF 2019,
CRIMINAL APPEAL NO. 352 OF 2020,
CRIMINAL APPEAL NO. 1296 OF 2021 and
CRIMINAL APPEAL NO. 499 OF 2022
IN CRL.A.NO.1734/2022:
BETWEEN:
Digitally
signed by 1. Sri. Ashok Kumar @ Ashu
SRIDEVI S S/o Shiva
Location:
HIGH Aged about 25 years
COURT OF
KARNATAKA 2. Sri. Akash
S/o Shiva
Aged about 26 years
Both are residing at
No.151, 7th Cross,
Annamanapalya,
Hosapalya Main Road,
Benglauru-560068.
...Appellants
(By Sri M R Nanjunda Gowda, Advocate)
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NC: 2024:KHC:25117-DB
CRL.A No. 1734 of 2022
C/W CRL.A No. 1001 of 2019
CRL.A No. 352 of 2020
CRL.A No. 1296 of 2021
CRL.A No. 499 of 2022
AND:
1. State of Karnataka by
Bandepalya Police,
Represented by
State Public Prosecutor,
High Court Buildings,
Benglauru-560 001.
2. Sri. Venkatesh
S/o Late Gangaiah
Aged about 53 years,
R/at No.45, 3rd Cross,
1st Main, Annammanapalya,
Near Government School
Bandepalya,
Bengaluru-560068.
...Respondents
(By Sri Vijaykumar Majage, SPP-II along with
Smt. R. Sowmya, HCGP for R-1;
Smt. Shilpa Rani, Advocate for R-2)
This Criminal Appeal is filed under section 374(2) Cr.P.C.
praying to set aside the judgment of conviction dated
16.04.2019 and order of sentence dated 20.04.2019 passed by
the LXX Addl. City Civil and Sessions and Special Judge,
Bengaluru in S.C.No.891/2017 convicting the appellants/
accused for the offence p/u/s 143, 147, 148, 302, 120B r/w
section 149 of IPC.
IN CRL.A.NO.1001/2019:
BETWEEN:
Angadi Rajanna
Aged about 41 years,
S/o Varade Gowda,
Residing at No.315,
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NC: 2024:KHC:25117-DB
CRL.A No. 1734 of 2022
C/W CRL.A No. 1001 of 2019
CRL.A No. 352 of 2020
CRL.A No. 1296 of 2021
CRL.A No. 499 of 2022
Hosapalya Main Road,
Annammanapalya,
Opp. Mariyamma Temple,
Bandepalya,
Bengaluru-560 068.
...Appellant
(By Sri. C.H.Hanumantharaya, Advocate)
AND:
1. State of Karnataka by
Bandepalya Police Station,
Bandepalya
Bengaluru,
Represented by SPP,
High Court Buildings,
Benglauru-560 001.
2. Mr. Venkatesha
S/o Late Gangaiah
R/at No.45, 3rd Cross,
1st Main, Annammanapalya,
Near Government School
Bandepalya,
Bengaluru-560068.
(R2 impleaded vide order dated 29.06.2022)
...Respondents
(By Sri Vijaykumar Majage, SPP-II along with
Smt. R. Sowmya, HCGP for R-1;
Smt. Shilpa Rani, Advocate for R-2)
This Criminal Appeal is filed under section 374(2) Cr.P.C.
praying to set aside the judgment and order dated 16.04.2019
and sentence dated 20.04.2019 passed by the learned LXX
Additional City Civil and Sessions and Special Judge, Bengaluru
City (CCH-71) in S.C.No.891/2017 convicting the
appellant/accused No.7 for the offence p/u/s 302 of IPC.
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NC: 2024:KHC:25117-DB
CRL.A No. 1734 of 2022
C/W CRL.A No. 1001 of 2019
CRL.A No. 352 of 2020
CRL.A No. 1296 of 2021
CRL.A No. 499 of 2022
IN CRL.A.NO.352/2020:
BETWEEN:
Sri. Shiva
S/o Krishnan,
Aged about 49 years,
R/at No.151, 7th Cross,
Annamanapalya,
Hosapalya Main Road,
Bengaluru-560068.
...Appellant
(By Sri M.R.Nanjunda Gowda, Advocate)
AND:
1. State of Karnataka by
Bandepalya Police,
Represented by
State Public Prosecutor,
High Court Buildings,
Bengaluru-560 001.
2. Sri. Venkatesh
S/o Late Gangaiah
Aged about 55 years,
R/at No.45, 3rd Cross,
1st Main, Annammana palya,
Near Government School
Bandepalya,
Bengaluru-560068.
(R2 impleaded vide order dated 29.06.2022)
...Respondents
(By Sri Vijaykumar Majage, SPP-II along with
Smt. R. Sowmya, HCGP for R-1;
Smt. Shilpa Rani, Advocate for R-2)
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NC: 2024:KHC:25117-DB
CRL.A No. 1734 of 2022
C/W CRL.A No. 1001 of 2019
CRL.A No. 352 of 2020
CRL.A No. 1296 of 2021
CRL.A No. 499 of 2022
This Criminal Appeal is filed under section 374(2) Cr.P.C.
praying to set aside the judgment dated 16.04.2019 and
sentence dated 20.04.2019 passed by the learned LXX
Additional City Civil and Sessions and Special Judge, Bengaluru
City (CCH-71) in S.C.No.891/2017 convicting the
appellant/accused No.6 for the offence p/u/s 143, 147, 148,
302, 120B r/w 149 of IPC.
IN CRL.A.NO.1296/2021:
BETWEEN:
Ananda @ Kuppa S/o Sundaresh,
25 years, R/at No.108,
4th Cross, Annamanapalya,
Hosapalya Main Road,
Bengaluru-68.
...Appellant
(By Sri B.V.Pinto, Advocate)
AND:
1. The State of Karnataka by
Bandipalya Police, Bengaluru,
Represented by SPP
High Court of Karnataka,
Bengaluru-560 001.
2. Sri. Venkatesh
S/o Late Gangaiah
R/at No.45, 3rd Cross,
Near Government School
1st Main, Annammanapalya,
Bengaluru.
(R2 impleaded vide order dated 24.8.2022)
...Respondents
(By Sri Vijaykumar Majage, SPP-II along with
Smt. R. Sowmya, HCGP for R-1;
Smt. Shilpa Rani, Advocate for R-2)
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CRL.A No. 1734 of 2022
C/W CRL.A No. 1001 of 2019
CRL.A No. 352 of 2020
CRL.A No. 1296 of 2021
CRL.A No. 499 of 2022
This Criminal Appeal filed under section 374(2) Cr.P.C.
praying to set aside the judgment of conviction 16.04.2019 and
order of sentence dated 20.04.2019 passed by LXX Addl. City
Civil and Sessions Judge and Special Judge, Bengaluru (CCH71)
in S.C.No.891/2017 convicting the appellant for the offence
under sections 143, 147, 148, 120B, 302 r/w 149 of IPC.
IN CRL.A.NO.499/2022:
BETWEEN:
Nagaraja @ Naga @ Blacky
S/o Late Anjanappa,
26 years, R/at No.22,
Annamanapalya,
Hosapalya Main Road,
Bengaluru-560 068.
...Appellant
(By Sri B.V.Pinto, Advocate)
AND:
1. The State of Karnataka by
Bandipalya Police, Bengaluru,
Represented by SPP
High Court of Karnataka,
Bengaluru-560 001.
2. Sri. Venkatesh
S/o Late Gangaiah
R/at No.45, 3rd Cross,
Near Government School
1st Main, Annammanapalya,
Bengaluru.
(R2 impleaded vide order dated 24.8.2022)
...Respondents
(By Sri. Vijaykumar Majage, SPP-II along with
Smt. R. Sowmya, HCGP for R-1;
Smt. Shilpa Rani, Advocate for R-2)
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CRL.A No. 1734 of 2022
C/W CRL.A No. 1001 of 2019
CRL.A No. 352 of 2020
CRL.A No. 1296 of 2021
CRL.A No. 499 of 2022
This Criminal Appeal is filed under section 374(2) Cr.P.C.
praying to set aside the judgment of conviction dated
16.04.2019 and order of sentence dated 20.04.2019 passed by
the LXX Addl. City Civil and Sessions Judge and Special Judge,
Bengaluru (CCH71) in S.C.No.891/2017 convicting the
appellant for the offence under sections 143, 147, 148, 120B,
302 r/w 149 of IPC.
Date on which the appeals were 07.06.2024
reserved for judgment
Date on which the judgment was 04.07.2024
pronounced
These Criminal Appeals having been heard & reserved,
coming on for pronouncement this day, Sreenivas Harish
Kumar J., pronounced the following:
JUDGMENT
All these appeals are filed against the
judgment of conviction dated 16.04.2019 in
S.C.No.891/2017 on the file of LXX Additional City
Civil and Sessions Judge and Special Judge,
Bengaluru (CCH-71).
2. Crl.A.No.1734//2022 is filed by accused
Nos. 1 and 2; Crl.A.No.499/2022 is filed by
accused No.3; Crl.A.352/2020 is filed by accused
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No. 6; Crl.A.1296/2021 is filed by accused No.4
and Crl.A.No.1001/2019 is filed by accused No.7.
3. Accused Nos.1 to 4, 6 and 7 faced trial in
the sessions court for the offences punishable
under sections 143, 147, 148, 302 and 120B of IPC
and section 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act
('the Atrocities Act' for short), read with section
149 of IPC. Accused No.5 was a juvenile and he
was tried before the Juvenile Justice Board.
4. The incident pertains to killing of one
Arun Kumar, son of PW1 around 11.00 am on
05.02.2017. The background that led to the
incident was that Arun Kumar had quarreled with
all the accused including the juvenile-accused No.5
and the two groups had made mutual complaints at
the police station, thus there was enmity between
the two groups. In this background all the
NC: 2024:KHC:25117-DB
accused conspired to eliminate Arun Kumar. On
05.02.2017 at about 11.10 a.m when Arun Kumar
was going somewhere near 9 t h Cross, Bandepalya
main road, the accused chased him with weapons
in their hands. When Arun Kumar entered a shop
by name Sai Stores to rescue himself, the accused
entered the shop, dragged him out and inflicted
injuries indiscriminately consequent to which Arun
Kumar died at the spot. The father of Arun Kumar
i.e., PW1 made a report of the incident to the
police. Investigation led to filing of charge sheet.
As the deceased Arun Kumar was a scheduled
caste, the offence under section 3(2)(v) of the
Atrocities Act was invoked besides the
aforementioned IPC offences.
5. The prosecution in all examined 18
witnesses and got marked 52 documents as per
Exs.P1 to P52 and the material objects as per MO1
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to MO22. Exs.D1 to D4 are the documents that
were marked on behalf of the defence. The trial
court convicted the appellants/accused No.1 to 4
and 6 for the offences under sections 143, 147,
148, 302 and 120B read with section 149 of IPC,
and accused No.7 for the offence under section
120B read with section 302 of IPC. However all
the accused were acquitted of the offence under
section 3(2)(v) of the Atrocities Act. The
maximum sentence imposed on the appellants is
for life with fine of Rs.5,000/- for the offence
under section 302 and section 120B of IPC.
6. We have heard the arguments of Sri
M.R.Nanjunda Gowda, learned counsel for the
appellants in Crl.A.No.1734/2022 and 352/2020,
Sri C.H.Hanumantharaya, learned counsel for the
appellant in Crl.A.No.1001/2019, Sri B.V.Pinto,
learned counsel for the appellant in Crl.A. Nos.
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499/2022 and 1296/2021, and Smt. Sowmya,
learned High Court Government Pleader for the
respondent/State and Smt.Shilpa Rani, learned
counsel for respondent No.2.
7. Sri M.R.Nanjunda Gowda arguing on
behalf of accused 1, 2 and 6 submitted that the
trial court should not have convicted the accused
and all the reasons that the trial court has given
for recording conviction are erroneous in as much
as the prosecution failed to prove its case beyond
reasonable doubt. Police had information of the
incident prior to registration of FIR. Therefore the
entire investigation and the trial would get
vitiated. The general diary entry should be
considered as an FIR and the subsequent report
made by PW1 was hit by section 162 of Cr.P.C and
therefore the trial court should not have prevailed
upon Ex.P1. Elaborating his argument, he
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highlighted the points that the statements of PWs4
and 5 were recorded by the investigating officer
six days after the incident, there is no explanation
for the delay. This was also one of the important
factors that would weaken the prosecution case.
7.1. Referring to the medical evidence, Sri.
Nanjunda Gowda argued that it was contrary to the
ocular evidence and thereby there is no
corroboration for the testimonies of the
eyewitnesses. In regard to recovery of the
incriminating articles he argued that since it was a
joint recovery, no reliance can be placed on it. In
regard to the testimonies of the eyewitnesses his
argument was that all of them were chance
witnesses. The explanation given by them for
being at the place of incident cannot be believed
firstly because of delay in recording their
statements and secondly for not conducting test
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identification parade. Though the incident took
place in broad day light, the eyewitnesses being
strangers to the accused, it was necessary that the
investigating officer ought to have arranged for
test identification parade. For this reason, the oral
evidence of the eyewitnesses cannot be believed.
The statements given by the witnesses under
section 164 of Cr.P.C are contrary to their
statements under section 161 of Cr.P.C. The
names of these eyewitnesses are not mentioned in
Ex.P1. In the inquest report also the names of
eyewitnesses are not mentioned. The witness
named in the inquest turned hostile. In a
circumstance like this the testimonies of the
eyewitnesses cannot be believed without
corroboration. The charge for conspiracy should
also fail because the prosecution has not at all
produced any evidence in proof of the offence
under section 120B of IPC.
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7.2. He also argued that the prosecution
failed to prove the place of occurrence. The place
mentioned in the spot mahazar was not the place
of occurrence, want of proof in this regard makes
the prosecution case improbable. The prosecution
also failed to obtain FSL report. The investigation
was conducted by an officer of the rank of Sub
Inspector. According to Karnataka Police Manual
the Circle Inspector is the competent police officer
to investigate into the crime. In view of all these
infirmities in the evidence, the trial court should
not have convicted the accused and therefore the
appeal filed by accused 1, 2 and 6 deserves to be
allowed and they have to be acquitted and
released from the jail.
8. Sri C.H.Hanumantharaya, learned counsel
for the appellant in Crl.A.1001/2019, argued for
acquittal of the appellant/accused No.7 while
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highlighting the points that the testimonies of the
eyewitnesses and the witnesses to the recovery of
incriminating materials are worth rejection. He
argued that none of PW1, PW3, PW4, PW5 and PW6
implicates accused No.7 and they have spoken
against accused 3, 4, 5 and 6. In the report given
by PW1 the name of accused No.7 is not there.
The deceased was a rowdy element; many cases
had been registered against him on the allegation
of committing many crimes. Ex.D4 reflects on the
personality of the deceased. Once a proceeding
under section 107 of Cr.P.C was initiated against
him. He had a lot of enemies. This being the
background of the deceased, the investigating
officer ought to have been very circumspect while
filing the charge sheet against accused No.7. PW3
and 4 were witnesses to the inquest and they did
not disclose the names of other eyewitnesses to
the investigating officer. If they had seen the
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presence of other eyewitnesses at the time of
incident they would have definitely revealed their
names before the investigating officer. Since they
did not reveal the names, the inference that can
be drawn is that PW3 and PW4 were not
eyewitnesses. In this view the testimonies of all
the eyewitnesses should not be accepted at all.
Referring to the oral evidence of PW4, Sri
Hanumantharaya argued that PW4 came to know
about involvement of accused No.7 from one
Vijayakumar, but while giving evidence
Vijayakumar did not state so. If Vijayakumar had
given information to PW4 about accused No.7, the
testimony of PW4 becomes a hearsay evidence and
for this reason he renders himself untrustworthy
witness. The witnesses were all related to the
deceased. PW6 is the full brother and PW5 is a
relative of PW1. This shows their interestedness in
falsely implicating accused No.7.
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8.1. Accused No.7 was a petty shop owner; he
was a small businessman. From his meager
income it is highly impossible to believe that he
would engage accused 1 to 6 to eliminate the
deceased. He also pointed out many omissions in
the oral testimonies of the witnesses and further
argued that the time gap between the first incident
between the deceased and accused No.7, and the
incident dated 05.02.2017 was very long. Because
of this long gap, it is highly impossible to hold that
the temper, anger, emotion and hatred persisted in
accused No.7 in order to take revenge against the
deceased. This improbablizes the prosecution case
that at the instance of accused No.7, the deceased
was killed by other accused. The trial court has
missed to perceive this aspect of the matter. There
is no evidence for conspiracy among all the
accused. He also argued that the investigation
was conducted by Sub Inspector who was not
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authorized to conduct the investigation into
heinous offences. For all these reasons, the
conviction against accused No.7 cannot be
sustained.
9. Sri B.V.Pinto, learned counsel for accused
Nos. 3 and 4 argued on lines with Sri
M.R.Nanjunda Gowda.
10. Smt. R.Sowmya, learned High Court
Government Pleader, contended that the trial court
has discussed the evidence threadbare and has
given sound reasons. Every point that the defence
urged in this appeal was also urged before the trial
court. Every point has been answered by the trial
court. Therefore there is no scope for interfering
with the impugned judgment.
10.1. She contended that there is ample
evidence for conspiracy. From the evidence given
by PW7, an inference can be drawn that there was
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conspiracy among the accused and the killing of
the deceased was the outcome of the conspiracy.
The incident occurred in broad day light. The
accused were known to the eyewitnesses. Test
identification parade was not necessary to be held
as the eyewitnesses were able to see every
accused at the time of incident and that they
identified the accused in the court also.
Substantive evidence relating to identification of
the accused is available. The eyewitnesses can be
witnesses for inquest also, there is no rule that
eyewitnesses should not give statement at the
time of conducting inquest. The credibility of the
eyewitnesses is doubted without any basis. They
have given reason for their presence at the time of
incident. There is no cross-examination on this
aspect. It is for the first time in the appeal it is
projected that the eyewitnesses are chance
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witnesses. Though they are chance witnesses, it
cannot be said that they have deposed falsely.
10.2. There is no discrepancy between the
ocular evidence and the medical evidence. It is
wrongly interpreted by the defence. The witnesses
have supported recovery of material objects. They
have emerged as trustworthy witnesses. Recovery
of blood stained clothes of the accused and the
weapons were made at their instance in
accordance with section 27 of the Evidence Act. If
at all there is any discrepancy in the evidence of
witnesses to recovery, they are minor and do not
shake their trustworthiness. She further submitted
that there is no rule that joint recovery at the
instance of the accused is not permitted. A
decision to this effect has to be taken in the given
set of facts and circumstances of each case. The
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trial court has rightly held that the recovery is
acceptable.
10.3. Even though FSL report was not marked
the court can look into the report in accordance
with section 293 of Cr.P.C. FSL report indicates
presence of human blood on the clothes of the
accused and the weapons used by them. This
circumstance clearly indicate the involvement of all
the accused. It was her further argument that the
defence has unnecessarily raised confusion in
regard to description of the weapons. Actually the
eyewitnesses have spoken about the weapons in
their own way. Merely for the reason that one
witness stated that one of the accused was holding
a screw driver, that minor discrepancy in the
evidence will not affect the prosecution case.
10.4. In regard to investigation by Sub-
Inspector, she submitted that though in the Police
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Manual it is stated that the Circle Inspector has to
investigate the heinous cases, it is not mandatory
that Circle Inspector must alone conduct
investigation. The Karnataka Police Manual is just
a reference for work distribution and does not
mandate that at all times a Circle Inspector must
investigate the crime of murder. Moreover, there
is explanation for major part of investigation being
not conducted by the Circle Inspector. The reason
given is that the Circle Inspector had been
entrusted with some other duty where his presence
was very much required. Therefore Sub-Inspector
had to conduct investigation. This is not violation
of any law. Except stating that the investigation
by a police Sub-Inspector is bad, nothing is
demonstrated as to how the interest of the
accused was prejudiced on account of investigation
by the Sub-Inspector. In fact this point has also
been answered by the trial court. With these
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points, the Government Pleader submitted that the
appeals are worth dismissal.
11. The arguments of learned advocates for
the accused make one point very clear, it is not
their argument the accused are innocent and that
they are falsely implicated; their endeavor is to
demonstrate that the presence of eyewitnesses at
the scene of occurrence was doubtful and this
makes their oral evidence not believable. They
also doubt the improbability of there being
eyewitnesses because of some delay in recording
their statements under section 161 of Cr.P.C.
Seizure of incriminating materials are also doubted
in as much as it was outcome of joint recovery
which according to them is not permitted. Like
this they have founded their argument on
deficiency in investigation. Of course, whether
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investigation was deficient in the way learned
counsel argued requires to be answered.
12. Now the first point to be considered is
reliability of eyewitnesses. Except PW1, the other
witnesses viz., PW3, PW4 and PW5 are chance
witnesses. Reliance can be placed on the oral
testimony of chance witness if there is acceptable
reason for the presence of such a witness at the
time and place of incident. This has to be proved
by the prosecution.
13. PWs1, 3, 4, 5, 6 and 7 are examined as
eyewitnesses. The findings of the trial court on
the evidence given by these witnesses is well
supported with reasons. Given a relook to oral
testimonies of eyewitnesses, the inferences to be
drawn are these. It is true that PW7 has not
supported the prosecution in the manner he was
expected to speak. He was actually examined to
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establish the incident of attack on the deceased.
The prosecution version is that accused 1 to 6
chased the deceased and when the latter entered
the shop of PW7 in order to protect himself, the
accused entered the shop, dragged him out and
attacked him with weapons. That means incident
occurred on the road. But PW7 does not state
anything about assault made by accused, he has
just stated that deceased Arun Kumar entered his
shop. Though he turned hostile in regard to actual
incident, his evidence to the extent of seeing the
deceased entering the shop is very much
believable.
14. PW1 is the father of the deceased. He is
first informant as also an eyewitness. Speaking
about prior dispute between his son and the
accused, and his advice to his son to keep distance
from accused, he has given details of the incident.
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He has stated that on 05.02.2017 at about 11 am,
his son went out of the house and very soon he
heard the shouts of people. He went to that place
and saw accused Nos. 1 to 6 beating his son with
knives after pulling him out of shop. He has
stated that accused Nos.1 to 6 stabbed his son in
his front. As he shouted the accused fled that
place. He poured water into his son's mouth, but
resorted to killing his son at the instance of
accused No.7. Ex.P1 is the report made by him to
police for registration of FIR.
15. PW1 is extensively cross examined by
putting searching questions which he has
withstood very well, and suffice it to opine here
that the defence has not been able to discredit him
in regard to what he has stated about attack by
accused Nos. 1 to 6 on his son.
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16. The oral testimony of PW3 shows that he
happened to witness the incident when he came to
that place for T.V. servicing. His statement is that
when he came near Mariyamma Temple at
Bandepalya, he saw accused 1 to 4, 6 and 7
running behind the deceased, that when the
deceased entered the shop by name Sai Stores to
save his life, accused 2 and 3 entered the shop,
brought the deceased out of the shop and stabbed
on his chest, neck, stomach and other parts of the
body. He has stated that accused No.7 was
present at that place and asking other accused to
stab the deceased. He has stated that PW1 gave
water to his son, but the latter died.
17. The version of PW4 is that he was an
autorickshaw driver and when he was waiting for
passenger near Government School, Bandepalya,
he saw accused 1 to 4, 6 and 7 chasing Arun
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Kumar i.e., the deceased. He saw the deceased
entering Sai Stores to save himself, then accused
Nos. 2 and 4 entered the shop and brought the
deceased out of the shop. All the accused had
knives in their hands and stabbed the deceased.
He went running to the spot and shouted to leave
away the deceased, and by that time PW1 gave
water to his son, but he died.
18. PW5 was also examined as an eyewitness
besides being a witness to conversation between
accused 1 to 6 and accused No.7 in regard to their
intention to eliminate the deceased. He has stated
that he was driving autorickshaw and taxi in Hosur
road. He used to park his autorickshaw near
Government School, Bandepalya and visit the shop
of accused No.7. On one such visit to the shop of
accused No.7 two or three days before the incident
he overheard conversation among accused about
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their intention to kill the deceased. And in regard
to incident, it is his evidence that on 05.02.2017 in
between 10.45 and 11 a.m when he came near
Hosapalya bus stop situate near Mariyamma
temple, he saw accused Nos. 1 to 6 chasing the
deceased holding knives in their hands, pulling out
the deceased from Sai Stores and inflicting injuries
to him. He heard the yell of the deceased and of
PW1. He also saw PW1 giving water to his son,
and the death of the deceased.
19. PW6 is not an eyewitness to the incident,
he was mainly examined to prove a quarrel
between the deceased and accused No.7 about
twenty days prior to the date on which deceased
was killed. He has stated that the quarrel between
them was in connection with parking of the
autorickshaw by the deceased near the shop of
accused No.7. Relating to this quarrel a complaint
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had been registered against the deceased and he
was later on arrested. He has stated to have
heard accused No.7 speaking to accused Nos. 1 to
6 to finish off the deceased. With regard to
incident dated 05.02.2017, PW6 stated that he
came to know about the death from PW1 and came
to that place; he saw PW1 weeping and then he
consoled him. At that moment PW1 told him that
all the accused killed his son.
20. It is already observed that PW1 has not
been discredited in the cross-examination. His
testimony is worth acceptance for more than one
reason that he knew the accused being a resident
of that locality, and his statement is that the
accused themselves had come near his house to
complain against the deceased. The place of
incident is situated at an audible distance, and his
statement that he heard the shout of people which
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made him go there and saw the assault on his son
is very much believable. There was no delay in
registration of FIR based on his information as per
Ex.P1, in which he took the names of all the
accused. Therefore he is a natural witness and he
cannot be branded as an interested witness. Blood
relationship does not always make a witness
interested or partisan. Learned counsel Sri
M.R.Nanjunda Gowda has placed reliance on State
of Punjab vs Sucha Singh and Others (2003
Crl.L.J. 1210) where the testimony of the father
of the deceased as an eyewitness was doubted
because of his conduct in not trying to rescue his
son. Same is not the position here, PW1 rushed to
spot and shouted, he poured water into his son's
mouth also.
21. PWs.3, 4 and 5 have a reason for their
presence at the place of incident. Their versions
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about incident is sought to be disbelieved for two
reasons that test identification parade was not
held and some delay in recording their statements
by the investigating officer during investigation
make their statements disbelievable.
22. Test identification parade is a mode of
ascertaining the identity of the accused during
investigation. The eyewitnesses are required to
identify them, but this parade is necessary to be
held when the witnesses had just a fleeting
glimpse of the accused at the time of incident or
when the incident takes place in dim light or in a
situation where having clear vision of the persons
involved in crime is not so much possible.
Identification of the accused in the police station
voluntarily without any kind of hint by the police is
also acceptable provided the evidence in this
regard is believable. Here the witnesses identified
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the accused in the court also, this is substantive
evidence. There is no dispute with regard to time
of incident, it was at 11.00 am in broad day light.
Moreover the witnesses have clearly given the
reason for their presence at the spot, each one of
them has given a different reason for being at the
spot which is acceptable. PWs3, 4 and 5 may not
state that they saw each other at that time, but
their evidence of having seen the accused chasing
the deceased is consistent. And what is more
important is, all of them have stated that they saw
PW1 giving water to the deceased. It is not the
defence version that PW3, PW4 and PW5 had
animosity against accused.
23. It is true that Sri C.H.Hanumantharaya
and Sri M.R.Nanjunda Gowda have pointed out
some omissions in the evidence of PW3 and PW4.
The investigating officer-PW18, has stated that
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PW3, Satish has not given statement before him
that he came to Bandepalya on 05.02.2017 in
connection with TV repair work and that he saw
accused No.7 instigating the other accused to stab
the deceased. Likewise, PW18 has admitted
suggestion that PW4-Shivakumar has not made a
statement before him in such a way as the 7 t h
accused was chasing the deceased. PW3 has
denied the suggestion that he has not made a
statement that on 05.02.2017 he had been to
Bandepalya for fixing a TV, and when he was
specifically questioned that his statement before
the police does not disclose that he saw 7th
accused chasing the deceased, his answer is that
though he did not make a statement like that, he
saw the accused chasing the deceased with knives
in their hands. He also denied the suggestion that
he did not give a statement before the police that
the 7 t h accused asked the other accused to stab
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the deceased. PW4 has admitted in the cross-
examination that he did not see the 7 t h accused
and another admission that he did not state before
the police that the 7th accused chased the
deceased. Certainly these are the contradictions
that emerge in the evidence of PW3 and 4, but
they are not significantly material to dislodge their
evidence in toto. They might not have seen
accused No. 7, but their evidence as regards
assault on the deceased by other accused stands.
Merely because of the evidence of PW18 that there
is no statement of PW3 that he had come to
Bandepalya in connection with a T.V. repair work,
his evidence cannot be out-rightly rejected.
24. As regards involvement of accused No.7,
the allegation is that he conspired with other
accused. The prosecution seeks to implicate
accused No.7 based on the evidence given by PW5
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and 6. The evidence of PW5 is that he overheard
the conversation among all the accused when he
went to the shop of accused No.7. PW6 has also
stated to have heard accused No.7 telling the
other accused to finish off the deceased. PW5 has
admitted in the cross-examination that he did not
make a statement before the police that all the
accused were talking among themselves to finish
off the deceased. The evidence of PW6 appears to
be hearsay. For this reason the evidence of PWs5
and 6 about conspiracy said to have been hatched
by accused No.7 may not get established.
25. However it is to be seen whether
individual overt-act of accused No.7 is established
or not. PW3 and PW4 have stated in their
examination in chief that they saw accused No.7
chasing the deceased. Except stating that accused
Nos.1 to 6 killed his son at the instance of accused
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No.7, PW1 has not implicated accused No.7 of
causing injuries to his son. The evidence of PW3
as against accused No.7 is difficult to be believed
for the reason that though in the examination in
chief he has stated against accused No.7, in the
cross examination when he was questioned that he
had not given such a statement before police he
did not give a definite answer, and his answer is
that accused chased the deceased with knives in
their hands. PW18, the police officer who recorded
the statement of PW3 has admitted the suggestion
that PW3 has not given a statement that he saw
accused No.7 chasing the deceased with a knife.
PW18 has admitted another suggestion that PW3
has not given any statement that accused No.7
was present at the spot and instigating other
accused. So far as PW4 is concerned, it has to be
stated that although in the examination in chief he
implicated accused No.7 by stating that he saw
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accused No.7 chasing the deceased, in the cross
examination he admitted that he did not see
accused No.7 at the spot. For these reasons case
against accused No.7 is not established.
26. It has also been argued that the
investigating officer did not examine independent
witnesses available at the scene of occurrence.
This is a rhetoric argument in almost all cases,
while appreciating the evidence it should not be
forgotten that relating to an incident of murder
hardly any person of the locality will readily come
forward and as far as possible they try to keep
distance from the police.
27. Much has been argued about delay in
recording the statements of the eyewitnesses. It
is true that inordinate delay in recording the
statements of the witnesses sometimes makes the
prosecution case unreliable if satisfactory
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explanation is not forthcoming for the delay. In
this case, there was no delay in recording the
statements. It appears that the learned counsel
argued about the delay by referring to the
evidence of PW14 who recorded the further
statements, they have not referred to the evidence
of PW18 the police officer who recorded the
statements of the eye witnesses on the date of the
incident itself. If the evidence of PW18 is perused,
it becomes amply clear that soon after registration
of FIR he went to spot, got the spot panchanama
recorded and sketch of scene of occurrence drawn,
and undertook such other investigation. He shifted
the body to the mortuary and conducted inquest.
On the same day i.e., on the date of incident itself
he recorded statement of the eyewitnesses,
namely, Satish and Thimmappa. The records show
that the first statement of another witness
Shivakumar was also recorded on 05.02.2017
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itself. Therefore there was no delay in recording
the statements of the eyewitnesses. If their
further statements were recorded subsequently, it
cannot be considered fatal to the prosecution case.
28. Next is about recovery of weapons and
blood stained clothes of the accused. PW8 and
PW9 are the witnesses examined in proof of
recovery and seizure. PW8 speaks about seizure
of two knives MO4 and MO8 under mahazar
Ex.P16. His evidence is that the police took him to
a place behind jelly stone factory at Hosapalya and
the accused removed two knives from a bush and
produced before the police. In the court he
identified accused No. 2 as one of the accused who
showed the weapons.
29. PW9 states that he saw the police
recording the statements of accused 1 to 4, 6 and
7 in the police station and the accused stating
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before the police that they would show the place
where they had concealed the knives and clothes.
He states that the accused thereafter took him,
another witness like him (CW13) and police to a
place near Kudlu on Hosur road and from there to
a layout where they showed knives and clothes
kept in a bush. Ex.P17 is the mahazar drawn at
that time in proof of seizures effected. He
identified MOs.6, 7, 9 and 10 to 17 consisting of
clothes and knives and also the photographs
Exs.P18 to 21 snapped at the time of seizure of
these articles. PW14 was the police officer who
seized these items.
30. The seizure of these material objects is
objected by the defence on the ground it was a
joint recovery which is not permitted. The trial
court has held that joint recovery cannot be held
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to be impermitted, and the evidence of witnesses
in regard to seizure is very much believable.
31. Sri M.R.Nanjunda Gowda has placed
reliance on three judgments of the Delhi High
Court, namely, Oudh Ram and Others V. The
State [1982 CRL.J. 1656], Chander Pal V. The
State [1999 CRL.J. 135] & Kavinder and
Others v. State (NCT of Delhi) [2005 CRL.J.
1589] in support of his arguments that joint
recovery is impermissible. But this argument is
unconvincing.
32. The Hon'ble Supreme Court in the case of
Kishore Bhadke v. State of Maharashtra [AIR
2017 SC 279] has clearly taken a view that any
recovery made at the instance of two or more
accused falls within the regime of section 27 of the
Indian Evidence Act. In para 20 it is held as
below:
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"20. In the case of State (NCT of Delhi) V.
Navjot Sandhu, this Court has held that a
joint disclosure or simultaneous disclosures,
per se, are not inadmissible under Section
27. A person accused need not necessarily
be a single person, but it could be a
plurality of the accused. The Court held that
a joint or simultaneous disclosure is a myth,
because two or more accused persons would
not have uttered informatory words in
chorus. When two persons in custody are
interrogated separately and simultaneously
and both of them may furnish similar
information leading to the discovery of fact
which was reduced into writing, such
disclosure by two or more persons in police
custody do not go out of the purview of
Section 27 altogether. What is relevant is
that information given by one after the
other without any break, almost
simultaneously, as in the present case and
such information is followed up by pointing
out the material things by both of them then
there is no good reason to eschew such
evidence from the regime of Section 27.
Whether that information is credible is a
matter of evaluation of evidence. The Courts
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below have accepted the prosecution version
in this behalf, being credible. Suffice it to
say that the disclosure made by Accused No.
3 about the relevant fact, per se, is not
inadmissible.
(emphasis supplied)
33. In view of the above decision of the
Hon'ble Supreme Court recoveries are very much
reliable.
34. It is true that prominent witnesses have
stumbled when they were questioned about the
type of the weapons. One has stated that the
accused were holding knives, the other has stated
that he saw choppers and the third one has stated
there was a screw driver also. What is important
is all of them state about weapons being held by
accused Nos.1 to 6. If they faltered while
mentioning the type of weapon, it is not a
significant discrepancy which totally dislodges the
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prosecution case. Ultimately the police were able
to recover the weapons stained with blood and
they were identified by the witnesses. It has to be
stated the incident like the one here does not take
place for a long time, everything may be over in a
very short span of time. If any eyewitnesses gives
full description of a weapon or says about type of
weapon, that kind of evidence appears very
unnatural. Discrepancy of this nature is bound to
be there. Therefore the discrepancy as pointed
out by learned advocates also does not enure to
the benefit of the accused.
35. Sri M.R.Nanjunda Gowda argued that the
scene of occurrence is also not proved. Again this
argument fails. Spot panchanama-Ex.P2 shows
that the incident occurred by the side of Sai Stores
on 9 t h cross road, Bandepalya. PW1 is the father
of the deceased and being the resident of that
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locality has clearly given evidence about the place
where his son was hacked to death. The evidence
of PW2 and PW3 indicates the same place. Merely
because the deceased entered Sai Stores, it does
not mean that the incident occurred inside the
shop. The place of incident is correctly shown in
Ex.P2.
36. It is true that FSL report was not marked
during trial. This was a lapse on the part of the
public prosecutor in not getting it marked. Despite
this since FSL report is a part of prosecution
papers and was produced before the court, it can
be looked into in accordance with section 293 of
Cr.P.C. whether it was marked during trial or not.
FSL report indicates presence of blood stains on
the clothes of the accused. The accused Nos.1 to
6 should explain how their clothes become stained
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with blood. In the absence of the explanation
adverse inference has to be drawn against them.
37. Sri C.H.Hanumantharaya and Sri
M.R.Nanjunda Gowda made it a prominent point of
argument that the investigation conducted by the
Sub-Inspector of police vitiates investigation. In
this regard he referred to Rule 201 of the
Karnataka Police Manual according to which the
Circle Inspector has to investigate heinous cases.
All that can be stated is that Police Manual is only
a guideline, it is not a mandatory that the Circle
Inspector alone should investigate. Moreover in
this case there is an explanation that the Circle
Inspector of Police had been assigned with another
duty and therefore the Sub-Inspector had to
investigate. It may be further stated that if the
Circle Inspector has been assigned with some
other duty, investigation cannot be postponed till
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his arrival. If this kind of interpretation is given,
there are chances that the best evidence available
at the earliest point of time will be lost. Sri
Vijaykumar Majage has placed reliance on the
judgment of the Supreme Court in the case of Rah
Siburan v. Shankaregowda @ Shankara and
Another [(2017) 16 SCC 126] where it is held
that even if investigation is not conducted by
authorized officer trial is not vitiated unless
prejudice is shown. Here the argument is that
Sub-Inspector was not authorized but it is not
demonstrated how the interest of the accused was
prejudiced because of investigation conducted by
the Sub-Inspector of Police.
38. It appears that the deceased was
involved in many criminal cases. It was argued
that he had many enemies and therefore
involvement of accused was doubted. This
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argument cannot be sustained. If the deceased
was a rowdy, it does not mean it was a license for
another to kill him.
39. Having answered all the points of
arguments raised by the learned counsel for the
appellants, if the prosecution case is put to further
scrutiny, it is found that there is no evidence that
accused No.7 conspired with other accused for
causing death of Arun Kumar. His direct
participation in commission of crime is also not
forthcoming. PW1 may have stated that a few
days before the incident occurred accused No.7
had come to his house to complain against his son
i.e., the deceased. For this reason alone, the
involvement of accused No.7 cannot be suspected.
There is also no recovery of incriminating material
from him. For this reason we are of the opinion
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that conviction of accused No.7 by the trial court
cannot be sustained.
40. It is the case of prosecution that at the
instance of accused No.7 only the other accused
resorted to killing Arun Kumar. Merely for the
reason that there is no evidence as regards
involvement of accused No.7, benefit of doubt can
be extended to accused Nos.1 to 6. PW1 has stated
that even accused Nos.1 to 6 had enmity against
his son. Even otherwise since the clear overt-acts
of accused Nos.1 to 6 are forthcoming, motive
recedes to background. Multiple injuries were
inflicted to the deceased, when he entered a shop
to save himself he was dragged out and assaulted
severely with weapons. This indicates clear
intention of accused Nos.1 to 6 to kill the
deceased.
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41. The trial court framed charges for the
offences under sections 143, 147 and 148 of IPC
probably for the reason that total number of
accused were seven (7). If the facts and
circumstances are assessed, it is not impossible to
opine that what accused Nos.1 to 6 shared was
common intention. There is no rule that just
because total number of accused are five or more,
section 149 of IPC is to be invoked. Here there is
no evidence for convicting the accused Nos.1 to 6
under sections 143, 147 and 148 of IPC. To this
extent the impugned judgment cannot be
sustained.
42. In conclusion, we have to state that the
judgment of the trial court convicting accused
Nos.1 to 6 for the offence under section 302 of IPC
cannot be interfered with. However the impugned
judgment cannot be sustained for the offences
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under sections 120B, 143, 147 and 148 of IPC.
Now the following:
ORDER
Crl.A.No.1001/2019 filed by accused
No.7 is allowed. The judgment of the
trial court convicting accused
No.7/appellant for the offences
punishable under section 302 read with
section 120B of IPC is set-aside, he is
acquitted of the said offence.
Accused No.7 shall be set at liberty
if he is not required in any case/s.
Crl.A.Nos.1734/2022 filed by
accused Nos.1 and 2, Crl.A.No.499/2022
filed by accused No.3, Crl.A.No.352/2020
filed by accused No.6 and
Crl.A.No.1296/2021 filed by accused No.4
are partly allowed.
Accused Nos.1, 2, 3, 4 and 6 are
acquitted of the offences punishable
under sections 143, 147, 148 and 120B
of IPC and judgment of the trial court
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convicting the said accused for these
offences is set-aside.
However accused Nos.1, 2, 3, 4 and
6 are held guilty of the offence
punishable under section 302 read with
section 34 of IPC and the sentence
imposed by the trial court on each of
them for this offence is confirmed.
The period already spent by accused
Nos.1, 2, 3, 4 and 6 in jail can be
calculated for the purpose of section 432
of Cr.P.C.
Send back the trial court records
with a copy of this judgment.
Sd/-
JUDGE
Sd/-
JUDGE
CKL/KMV
