IN CRL.A.No.533/2012 1. Manja @ Auto Manja, Aged About 26 Years, S/O. Devarajegouda, Channarayanapattana Taluk, R/O. Gejjagarana

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27 TH DAY OF APRIL, 2018

PRESENT

THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA

AND

THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

CRIMINAL APPEAL No.533/2012

C/w. CRIMINAL APPEAL No.1090/2012

& CRIMINAL APPEAL No. 1127/2012

IN CRL.A.No.533/2012

BETWEEN:

1. Manja @ Auto Manja, Aged about 26 years, S/o. Devarajegouda, Channarayanapattana Taluk, R/o. Gejjagaranahalli, Hassan District.

2. Shankar @ Shivashankar, Aged about 26 years, S/o. Puttegouda, R/o. Gejjagaranahalli, Channarayanapattana Taluk, Hassan District. …Appellants

(By Sri. Hashmath Pasha, Adv.)

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

AND:

State by Konanur Police, Represented by SPP, High Court of Karnataka, Bangalore. …Respondent

(By Sri. Chetan Desai, HCGP)

This Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order of conviction dated:19.03.2012 passed by the Fast Track Court-II and Sessions Judge, Hassan in S.C.No.33/2007 – Convicting the appellants/accused for the offences punishable under Sections 120(B), 302, 363, 201 R/w Section 34 of IPC.

The appellants/accused are sentenced to undergo simple life imprisonment and to pay a fine of `5,000/- each, in default to pay fine amount, they shall further undergo simple imprisonment for 3 months for the offence punishable under Section 120(B) R/w Sec.34 of IPC.

The appellants/accused are sentenced to undergo simple life imprisonment and pay a fine of `5,000/- each, in default to pay fine, they shall further undergo simple imprisonment for 3 months for the offence punishable under Section 302 R/w Sec.34 of IPC.

The appellants/accused are sentenced to undergo simple imprisonment for 7 years and pay fine of `3,000/- each, in default to pay fine, they shall further undergo simple imprisonment for 2 months for the offence punishable under Section 363 R/w Sec.34 of IPC.

The appellants/accused are sentenced to undergo simple imprisonment for 7 years and pay a fine of `3,000/- Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

each, in default to pay fine, they shall further undergo simple imprisonment for 2 months for the offence punishable under Section 201 R/w Sec.34 of IPC.

In Crl.A.No.1090/2012

BETWEEN:

Konanuru Police Station. …Appellant

(By Sri. Chetan Desai, HCGP)

AND:

1. Shankar @ Shankaregowda, S/o. Hanumegowda @ Chikka Ajjanna, Aged about 30 years, Gejjegaranahally Village, Dandiganahally Hobli, Channarayapatna Taluk- 573 116.

2. Sharath @ Sharathkumar, S/o. Shivalingegowda, Aged about 29 years, Driver and owner of the Van Bearing Reg No.KA-02-M-7376, Doodagaradevu Village, Dondiganahally Hobli, Channarayapatna Taluk-573 116.

3. Manja @ Auto Manja, S/o. Devarajegowda, Aged about 26 years, Gejjegaranahally Village, Dandiganahally Hobli, Channarayapatna Taluk-573 116.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

4. Shankar @ Shivashankar, S/o. Puttegowda, Aged about 26 years, Gejjegaranahally Village, Dandiganahally Hobli, Channarayapatna Taluk-573 116.

5. Smt. Manjula, W/o. Rajegowda, Aged about 40 years, Muduganuru, Mallipatna Hobli, Arakalgudu Taluk-573 102. …Respondents

(By Sri. Dinesh Kumar K Rao, Adv. for Sri. R.B. Deshpande, Adv. for R1 and R5; Smt. Budrunnisa, Adv. for R2; Sri. Hasmath Pasha, Adv. for R3 and R4)

This Appeal is filed under Section 377 of Cr.P.C praying to modify the order of sentence dated:19.03.2012 passed by the Fast Track Court-II and Sessions Judge, Hassan, in S.C.No.33/2007 and impose adequate sentence against the accused for the offence punishable under Sections 120(B), 302, 363, and 201 R/W 34 of IPC.

The respondents/accused are sentenced to undergo simple life imprisonment to pay a fine of `5,000/- each, in default to pay the fine amount, they shall further undergo further simple imprisonment for a period of 3 months, for the offence punishable under Section 120B R/w 34 of IPC.

The respondents/accused are sentenced to undergo simple life imprisonment and pay fine of `5,000/- each, in default to pay fine, they shall undergo further simple Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

imprisonment for 3 months for the offence punishable under Section 302 R/w 34 of IPC.

The respondent/accused are sentenced to undergo simple imprisonment for 7 years and pay fine of `3,000/- each, in default to pay fine, they shall undergo further simple imprisonment for 2 months for the offence punishable under Section 363 R/w 34 of IPC.

The respondents/accused are sentenced to undergo simple imprisonment for 7 years and pay fine of `3,000/- each, in default to pay fine, they shall undergo further, simple imprisonment for 2 months for the offence punishable under Section 201 R/w 34 of IPC.

In Crl.A.No.1127/2012

BETWEEN:

1. Shankara @ Shankaregowda, S/o. Hanuma Gowda, Chickayanna, 30 years, Gejagarayana Halli, Dandigara Halli Hobli, Channarayapattana Taluk, Hassan District.

2. Sharath S/o. Shivalinga Gowda, 29 years, Driver, Doodagaradavu, Channarayapattana Taluk, Hassan District.

3. Manjula W/o. Raja Gowda, 40 years, Madagana Village, Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Mallipatna Hobli, Arkalagudu Taluk, Hassan District. …Appellants

(By Sri. Dinesh Kumar K Rao, Adv. for Sri. R.B. Deshpande for A1 & A3 Smt. Budrunnisa, Adv. for A2)

AND:

State of Karnataka, By Konnunauru Police Station, Hassan District. …Respondent

(By Sri. Chetan Desai, HCGP)

This Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and order of conviction dated:19.03.2012 passed by the II F.T.C. & S.J., Hassan in S.C.No.33/2007 – Convicting the appellants/accused for the offence punishable under Sections 120(B), 302, 363, 201 R/W 34 of IPC.

The appellants/accused are sentenced to undergo simple imprisonment for life and pay fine of `5,000/-each, in default to pay fine, they shall undergo further simple imprisonment for 3 months for the offence punishable under Section 120(B) R/w 34 of IPC.

The appellants/accused No.1 and 2 are sentenced to undergo simple imprisonment for life and pay fine of `5,000/- each, in default to pay fine, they shall undergo further simple imprisonment for 3 months for the offence punishable under Section 302 R/w 34 of IPC.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

The appellants/accused No.1 and 2 are sentenced to undergo simple imprisonment for 7 years and pay fine of `3,000/- each, in default to pay fine, they shall undergo further simple imprisonment for 2 months for the offence punishable under Section 363 R/w 34 of IPC.

These Appeals having been heard and reserved for judgment on 27.03.2018, coming on pronouncement of judgment this day, Dr.H.B.Prabhakara Sastry, J., delivered the following :

JUDGMENT

Being aggrieved by the judgment of conviction and order on sentence passed by the Fast Track Court-II &

Sessions Judge, Hassan, (henceforth for brevity referred to as “the Sessions Court”), passed in Sessions Case

No.33/2007, on 19.3.2012, the appellants have preferred these appeals.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Criminal Appeal No.533/2012 is filed by accused

Nos.3 and 4, while Criminal Appeal No.1127/2012 is filed by accused Nos.1, 2 and 5. The appellants therein have challenged the judgment of conviction and order on sentence passed against them by the Sessions Court and have sought setting aside of the same and to acquit them for the alleged offences, whereas, Criminal Appeal

No.1090/2012 is filed by the respondent/State, seeking enhancement of the quantum of sentence passed by the

Sessions Court. As such, all these three appeals are connected and have been heard together and are being disposed off by this judgment.

2. Succinctly stated in Criminal Appeal

No.533/2012 and Criminal Appeal No.1127/2012, the appellants have taken a contention that the prosecution has miserably failed to bring out the theory of Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

conspiracy and common intention. That the entire case of the prosecution was based on circumstantial evidence, which it has not been able to establish. But, the Sessions Court not having properly appreciated the evidence led before it, has passed an erroneous judgment of conviction and order on sentence. Thus, the same deserves to be set aside.

On the other hand, the appellant/State in Criminal

Appeal No.1090/2012, has stated that the Sessions

Court having found the accused guilty of the offences punishable under Sections 120-B, 302, 363 and 301 read with Section 34 of Indian Penal Code and convicting them for the said offences, has awarded only a flee bite sentence on the accused, which is awfully inadequate and disproportionate as compared to the seriousness and gravity of the offences committed by the accused. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

In the appeals filed by the State, the respondent/State is being represented by the High Court

Government Pleader. In the appeal preferred by the accused, they are represented by their counsel.

3. The lower Court records were called for and the same are placed before the Court and perused by us.

4. Heard arguments of respective counsel for parties and perused the materials placed before this

Court.

5. A summary of the case of the prosecution is that on 21.10.2006, at 10.00 a.m., the complainant

Shankaregowda, S/o Doddakalegowda (PW-1), appeared before Konanur Police Station (complainant police) and lodged a complaint in their station in Crime

No.223/2006. The gist of the said complaint is that his elder sister Tulasi was married about four years ago to Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Sri Rajegowda, S/o Sannegowda, resident of

Mudaganuru village, as his second wife. They had a son aged about two years, born to them out of wedlock.

The said family of Rajegowda along with his mother

Smt.Nanjamma, were residing by setting up a hut in their land which was outside the village. That on

20.10.2006, at about 4.30 p.m., somebody called him

(complainant) and informed him that since that morning, his sister, brother-in-law, Nanjamma and child were found missing. Hearing the same, the complainant went to the house of his sister at Mudaganuru village, at about 8.00 p.m. on the very same day and noticed that nobody was there in the said house. He noticed splash of blood here and there in the said hut. The local people had also gathered there. He (complainant) searched for the missing persons in the surrounding locality, but, could not trace them. Suspecting that somebody had Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

assaulted his sister, brother-in-law, his mother and had kidnapped the child, he lodged a complaint with the complainant police. The said complaint was registered by the complainant police against unknown accused for the offences punishable under Sections 324 and 365 of

IPC.

6. On the very same day i.e., on 21.10.2006, at

1.30 p.m., one Sri G.T.Swami, the Station House Officer and the Police Sub-Inspector of Banakal Police Station,

Chickmagaluru District, received a telephonic message to the effect that one dead body of a male has been found near a water stream behind a bus stop near

Alekhan Horatti Cross on K.M.Road. Immediately, accompanied by his staff, Head Constable Chandraiah and Police Constable Rudresh and Nandeesh, he visited the place as per information, where he found a dead Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

body of a male with injuries on the head, face and limbs, on the side of K.M.Road, beneath the culvert. He also noticed ligature mark on the neck of the dead body and an iron pipe, foot mats and blood stains in that place.

On deeper observation, he inferred that somebody had caused murder of the deceased about three to four days ago and had shifted the dead body to that place and thrown it there in order to cause disappearance of evidence. Accordingly, he lodged a complaint in his police station on the same day at 2.30 p.m. against unknown persons for the offences under Sections 302,

201 of IPC. The said crime was registered in their police station in Crime No.95/2006. The FIRs. were filed with the respective jurisdictional Courts in both the cases.

7. Thereafter, on 23.10.2006, in the morning at

7.00 a.m., one Smt.Puttananjamma (PW-3) of Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Mudaganuru village, appeared before the complainant police and gave a statement stating that on 22.10.2006, her village received a telephonic call from Banakal Police

Station, informing them that an unidentified dead body was found in Charmadi Ghat and the said dead body was found possessing the telephone number of the said village. Based upon the said information, she, joined by other villagers, proceeded to the said place and identified the said body as that of her younger brother

Rajegowda. Suspecting that his wife Tulasi, his mother

Nanjamma and his two year old son must also have been killed and bodies were thrown somewhere, she suspected accused No.5 – Manjula, the first wife of deceased Rajegowda and accused No.1 Shankaregowda, younger brother of accused No.5, in the suspected commission of crime. Getting the said information confirmed through Banakal Police also, the complainant Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

police incorporated Sections 302 and 201 of IPC in the existing Crime No.223/2006.

8. According to the complainant police, with the said information, they proceeded to investigate the matter and during their investigation, they also recovered dead bodies of Tulasi and Nanjamma and traced missing Rangaswamy, the minor son of deceased

Rajegowda and arrived at a conclusion that accused

No.5 Manjula for the reason that her husband

Rajegowda had deserted her and had married for the second time with deceased Tulasi, had vengeance in that regard. Further, knowing that the property that was in the possession of her and her children had to be shared with her three sisters-in-law and mother-in-law, who were supported by her husband, had developed vengeance and instigated accused Nos.1 to 4 and Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

provoked them and thereby hatched a conspiracy, made accused Nos.1 to 4 to go to the hut where Rajegowda was residing with his second wife Tulasi, Rangaswamy and Nanjamma at Mudaganuru village, in the land bearing Survey No.501, and cause murder of

Rajegowda, Tulasi and Nanjamma, by assaulting them with iron rod and pipe and also to kidnap minor son

Rangaswamy. Further, with an intention to cause disappearance of the evidence, they shifted all the three dead bodies in a motorvan bearing registration No.KA-

02-M-7376, along with Rangaswamy, the child and threw the dead bodies of Nanjamma and Tulasi in

Charmadi Ghat, a bit ahead of the Kottigehara and thereafter, proceeding a little ahead and they threw the dead body of Rajegowda in a ditch on the side of the road and washed the vehicle used in carrying the dead bodies and their clothes in Netravati river, near Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Dharmasthala and left the kidnapped minor boy

Rangaswamy at Dharmasthala. With the above inferences, the complainant police filed charge sheet against all the five accused for the offences punishable under Sections 365, 302, 201, 120-B read with Section

34 of IPC. Charges were framed against all the five accused for the offences punishable under Sections 120-

B, 302, 363, 201 read with Section 34 of IPC.

9. Accused pleaded not guilty and claimed to be tried. In order to prove the guilt against the accused, the prosecution examined 37 witnesses from PW-1 to

PW-37 and got marked documents at Exs.P-1 to P-48 and material objects at MO-1 to MO-31. No witnesses were examined from the accused side. However, in the cross-examination of PW-10, Exs.D-1 to D-10 were marked from the accused side. After hearing both sides and perusing the material placed before it, the Sessions Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Court by its impugned judgment of conviction and order on sentence dated 19.3.2012, convicted all the five accused for the offences punishable under Sections

120-B, 302, 363, 201 read with Section 34 of IPC. It sentenced the accused to undergo life imprisonment and to pay a fine of `5,000/- each and in default, to undergo, an additional simple sentence of three months for the offences punishable under Section 120-B of IPC.

It sentenced accused Nos.1 to 4 for simple life imprisonment and to pay fine of `5,000/- each and in default of payment of fine, to undergo an additional simple imprisonment for three months for the offences punishable under Section 302 read with Section 34 of

IPC. It sentenced the accused Nos.1 to 4 for seven years simple life imprisonment and to pay fine of `3,000/- each and in default of payment of fine, to undergo an additional simple imprisonment for two months for the Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

offence punishable under Section 363 read with Section

34 of IPC. The Sessions Court also sentenced accused

Nos.1 to 4 to undergo seven years simple life imprisonment and to pay fine of `3 ,000/- each and in default of payment of fine, to undergo an additional simple imprisonment for two months for the offence punishable under Section 201 read with Section 34 of

IPC. It is against the said judgment of conviction and order on sentence, the present appeals have been preferred both by the accused, as well by the State, as mentioned above.

10. Accused Nos.1, 3, 4 and 5 are being represented by their respective counsel. On the request of accused No.2, he has been provided with the services of Legal Services Authority. As such, Smt.Budrunnisa, learned counsel appears for accused No.2. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

11. Learned counsel for accused Nos.1 and 5 in his argument while reiterating the grounds taken up by him in his memorandum of appeal, contended that the

Sessions Court has committed an error in not properly appreciating the evidence led before it. In the absence of any proof regarding conspiracy, the entire case of the prosecution falls to the ground. He also submitted that alleged recoveries canvassed by the police are highly unbelievable.

Learned counsel appearing for accused No.2 in her arguments submitted that the accusation against accused No.2 is that he assaulted the deceased

Nanjamma with a chopper on her head, whereas, the medical evidence given by the doctor does not correlate to the alleged assault since there is no corresponding injury found on the dead person. Learned counsel Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

further submitted that alleged conspiracy and recovery could not be proved by the prosecution, as such, the judgment of conviction under appeal deserves to be set aside.

12. Learned counsel appearing for accused Nos.3 and 4 in his arguments submitted that absolutely there is no evidence as to when, where and how the conspiracy has taken place. It is also not shown that the alleged conspiracy was taken place prior to the alleged commission of crime, which according to the prosecution, was on 19.10.2006. He further submitted that the alleged recovery of the dead body at the instance of accused Nos.3 and 4 is not a recovery in the eye of law, since by that time, the police had already knowledge of the place where those two dead bodies of deceased Tulasi and Nanjamma were found. That the evidence of prosecution witnesses also go to show that Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

by the time the accused are said to have taken the police and panchas to the alleged place where the dead body was said to have been found, there were already local police guarding the dead body and people had also gathered there. He further submitted that the alleged recovery of the weapons does not inspire any confidence or belief. Learned Counsel submitted that the prosecution has utterly failed to establish any nexus between the alleged recovery of the weapons and their use in the commission of the crime. He submitted that mere alleged recovery of iron rods and clothes of the accused by itself would not establish any nexus between the accused and the commission of crime. He further submitted that the evidence of PW-10 is highly non- realistic and unbelievable. There is improvement in his evidence. As such also, it is not believable. In conclusion, learned counsel for the accused submitted Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

that the prosecution had utterly failed to prove the guilt alleged against the accused.

Per contra, learned HCGP in his argument submitted that the prosecution has proved the guilt against all the accused beyond reasonable doubt and that considering the heinous crime of triple murder and kidnapping of a minor child, the sentence awarded by the Sessions Court is inadequate and the same deserved to be enhanced.

Having heard the rival submissions, we have re-examined the evidence.

13. The case of the prosecution begins with PW-1

Shankaregowda lodging a complaint with the complainant police about alleged missing of all the three deceased and a minor boy Rangaswamy from their Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

house on 20.10.2006. Thereafter, on the very next day i.e., on 21.10.2006, Police Sub-Inspector of Banakal

Police Station is said to have found the dead body of

Rajegowda in Charmadi Ghat. On the suspicion of PW-3

Puttananjamma, the Investigating Officer is said to have arrested accused No.1. It is on his alleged voluntary statement, the other two dead bodies of Tulasi and

Nanjamma were traced in the same Charmadi Ghat, but at a distance of half Kilometer from the place where the dead body of Rajegowda was found. It is also the case of the prosecution that it was at the voluntary statement of the very same accused No.1, the whereabouts of missing boy, Rangaswamy was also found and the said boy was traced at Dharmasthala. Again based on the alleged voluntary statement of accused No.1, the other accused were apprehended and subsequently based on their alleged voluntary statement, recoveries were Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

made. Thus, admittedly the case of the prosecution is based upon circumstantial evidence. In order to prove these aspects, the prosecution examined 37 witnesses.

14. PW-1 (CW-1) Shankaregowda in his evidence has stated that deceased Tulasi was his elder sister and her husband was deceased Rajegowda. The deceased

Nanjamma was the mother of deceased Rajegowda.

Accused No.5 was the first wife of Rajegowda, as such, deceased Tulasi was his second wife. Said Rajegowda, along with his second wife Tulasi, their child

Rangaswamy and deceased Nanjamma, were residing in a hut on their land. Accused No.5 was residing in the old house belonging to Rajegowda, which was at

Mudaganuru. On 20.10.2006, at about 10.00 p.m., his neighbour received a call from Mudaganuru informing that Tulasi, her son and Nanjamma were not found in their house. Then he (PW-1), joined by his friend CW-2 Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Shivashankara, CW-3 Dharmendra, CW-4 Ananda, went to Mudaganuru on motorcycles. In the hut of

Rajegowda, they found nobody. However, they noticed blood in the said house and also chilli powder, an iron rod was also found in that place. Several of the villagers had gathered near that house. Despite his search in the relatives house, since he could not find deceased

Rajegowda and his family, on 21.10.2006, at 8.00 a.m., he went to Konanuru police station and lodged a complaint alleging missing of Rajegowda, his wife Tulasi,

Nanjamma and Rangaswamy. The witness has identified his complaint at Ex.P-1.

The witness has further stated that on 31.10.2006, in order to know about the matter, he went to Arkalgud police station, where all the five accused were present.

Showing them to him, the police stated that those Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

accused had killed his sister, brother-in-law and

Nanjamma. Police took him to police station at

Dharmasthala, where Rangaswamy was present. The police took him and the child to the Court at Arkalgud, where, after executing a bond, he took custody of the child. He has also stated that accused No.5 and his brother-in-law were now and then quarrelling.

He was subjected to a detailed cross-examination from the side of the accused, wherein giving some more details about his brother-in-law Rajegowda and accused

No.5, the witness has adhered to his original version.

15. PW-2 (CW-2) Dharmendra in his examination- in-chief has stated that deceased Tulasi was married as the second wife of Rajegowda about five to six years ago. On 20.10.2006, he accompanied PW-1 to

Mudaganuru village, where they visited the hut of Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Rajegowda. This witness has also stated that inside the hut, they noticed blood stains, spilling of chilli powder, an iron rod and a wrist watch. Inmates were not found in that house. Ten days thereafter, he came to know that the dead body of Rajegowda and Tulasi were found at Charmadi Ghat and their son was left at

Dharmasthala. Nothing more favourable to the accused could be elicited in his cross-examination by the accused.

16. PW-3 (CW-5) Puttananjamma, elder sister of deceased Rajegowda in her evidence, apart from stating her relationship with the family of Rajegowda, has also stated that accused No.5, the first wife of Rajegowda was not taking care of her mother-in-law Nanjamma properly and that she was unnecessarily quarrelling with her. In that regard, a panchayat was held in their village, wherein it was decided that deceased Rajegowda Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

and his wife, the 5 th accused, should give three bags of

Ragi (finger millet) and `500/- p.a. to Nanjamma.

However, Rajegowda and accused No.5 did not honour their commitment. This led her (this witness) and her sister, joined by their mother, to file a case, seeking partition of the property against deceased Rajegowda and his wife Manjula. The case was decided granting

1/5 th of share in the ancestral property. It was thereafter, Rajegowda married Tulasi as his second wife.

Both of them on building a hut in the land, started residing there. Nanjamma also joined them.

Rajegowda and Tulasi had a child. Accused No.5 was residing in the village. Since then, accused No.5 was not in good terms with Rajegowda, Tulasi and Nanjamma.

The witness has further stated that about 2 years 9 months ago, one evening at about 6.00 p.m. Rajegowda Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

had been to the village to purchase beedi (mini cigar).

On the next morning, at about 10.00 a.m., the villagers told that nobody was found in the hut of Rajegowda.

She went to the hut and saw blood on the floor.

A length of pipe, a rod and a chopper and a wire were found and chilli power was also spilled in the hut. She went to the village and intimated to the villagers, who, in turn, telephoned to the younger brother of Tulasi. On the same night, Shankaregowda also came to their village and stating that he would search for the missing persons and left the place. On the next morning, PW-1 returned. The police also came to the spot in the afternoon and drawing a mahazar, seized the articles found in the place (hut).

The witness has further stated that the next day after drawing the mahazar, on hearing that the dead body of Rajegowda was found in the hospital at Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Chickmagaluru, she, joined by about 40 to 50 persons, went to Government Hospital at Chickmagaluru and saw the dead body of her brother Rajegowda and identified him. She also gave a statement to the police. The police cremated the body. Next morning, she went to

Arkalgud police station, where the police recorded her statement. In her statement, she suspected accused

Nos.1 to 5. The police also brought accused No.1 to the police station, who, in front of the police, confessed that he has thrown the dead bodies of her mother and sister- in-law at Charmadi Ghat and would show them if he is taken to the said place. The police proceeded with the accused to the said place, followed by her and other people in another van. The jeep went to Charmadi Ghat where accused No.1 had shown them a spot which was in a valley of about 35 ft. depth. She noticed the dead body of her mother and at a distance of 10 ft., she Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

noticed the dead body of her sister-in-law. The police drew mahazar on both those bodies which had sustained injuries. She has specifically stated that accused No.5 due to her vengeance against her husband and mother- in-law, had killed the deceased.

PW-3 being a very important witness for the prosecution, was subjected to a detailed cross- examination on behalf of the accused. In her cross- examination, she gave some more details about what she had stated in her examination-in-chief. Further she has also spoken about the motive behind the incident stating that accused No.5 was now and then quarrelling with deceased Rajegowda and his wife Tulasi with respect to the lands. She was also beating her husband

Rajegowda.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

17. PW-4 (CW-8) Rajappa M.V., in his examination-in-chief has stated that he knows accused

No.1 and he also knows the family of deceased

Rajegowda, including his two wives. About ten to eleven years back, a serious altercation had taken place between Rajegowda and his first wife Manjula and in connection with the same, a panchayath was held in the village, where it was decided that Rajegowda and accused No.5 could enjoy the lands possessed by them, however, they should give three bags of Ragi and `500/- to Nanjamma. One and half years thereafter,

Nanjamma complained stating that she was not properly maintained. However, these people advised her to settle the matter within her family. Nanjamma joined by her daughters, instituted a suit before the Court claiming partition of the properties. After the said case was decided, accused No.5 was now and then Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

quarrelling with her husband, mother-in-law and other sisters of Rajegowda.

About the incident, the witness has stated that on

20.10.2006, at about 2.30 p.m., he came to know that

Rajegowda, Nanjamma and Tulasi and their child were not found in their house and that blood was found in their house, so also chilli power. He went to the said hut where Rajegowda was residing. By that time, people had gathered. He noticed in the said house blood on the floor and also chilli powder. He noticed three rods and a watch. PW-3 and her sister telephoned to their relatives on the same night between 8.30 p.m. and 9.00 p.m. PW-1 and other three persons came on motorcycle and inspected the hut. PW-1 left the place stating that he would lodge a complaint. On the next day in the afternoon at about 3.00 p.m., Konanuru

Police came to the shed and inspected the place. They Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

also drew mahazar in the said place, seized rods, chilli powder packet, Richo wrist watch, mat and also collected blood stained soil and took photograph of the place. He has also signed the said mahazar, which is at

Ex.P-2. The witness has identified the pieces of mat as

MOs.1 and 2, blood stained soil as MO-3 and the wrist watch as MO-4. The witness has further stated that

Mudigere police informed to a shop in their village over phone about they finding a dead body of a male. On the next day, about 40 to 50 persons of their village went to the Government Hospital at Chickmagalur in a van and found the dead body of Rajegowda in the mortuary, which they identified. After drawing a mahazar, the police cremated the dead body. PW-3, CW-6 and 7 went to Konanuru Police Station and lodged the complaint.

On the next day, the police asked them to come to

Arakalgudu Police Station. When they went there, they Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

showed them accused No.1, who, in their presence, stated that he would show the dead bodies of deceased

Nanjamma, Tulasi and also stated that he had left the child at Dharmasthala. The police took accused No.1 in their jeep. These people followed them in a car. Near

Charmadi Ghat, accused No.1 shows them the dead bodies of Nanjamma and Tulasi. The police brought the dead bodies to the road and conducted mahazar.

The witness has identified the inquest panchanama of those two dead bodies at Exs.P-3 and P-6 and his signatures therein. He has also stated that while coming from Arakalgudu Police Station to Charmadi Ghat, accused No.1 also shown them the place where the dead body of Rajegowda was thrown. The witness has identified his signature at Ex.P-5.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

He was subjected to a detailed cross-examination from the accused side, wherein he adhered to his original version.

18. PW-5 (CW-12) Raja Naik, in his evidence has stated that he was taken to Mangalore National Highway by the police for the purpose of mahazar and after having shown to him the two dead bodies of Smt.Tulasi and Smt.Nanjamma, the police drew an inquest panchanama on the dead body of Nanjamma as per

Ex.P-6, wherein, he has put his signature at Ex.P-6(a).

19. PW-6 (CW-7) Shantamma, the elder sister of deceased Rajegowda in her evidence, apart from stating about her relationship with the deceased and the relationship of the deceased inter se , has also stated that the deceased were murdered about two and half years prior to the date of her evidence. About two and Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

half years ago, one evening at about 4.00 p.m., on receiving a the telephonic call from her sister, PW-3

Puttananjamma intimating her about their brother

Rajegowda and his family missing, she went to

Mudaganuru on the next day morning, at about 11.00 a.m. In the meantime, at the information given to her by PW-3, she had told PW-1 Shankaregowda about missing of the deceased persons. On the same day evening, PW-1 Shankaregowda lodged a police complaint. At Mudaganuru, she saw the blood, chilli powder and few rods in the house of Rajegowda. Based on the information given by the Mudigere police, next day, she, with her sisters and the villagers of

Mudaganuru, went to District Hospital, Chickmagaluru, where they saw the dead body of her brother

Rajegowda. The dead body was burnt there itself.

PW-3 lodged a complaint with respect to missing of Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Tulasammma and Nanjamma. Accused No.1 was with the Circle Inspector of Arkalgud police. He stated that he would show the dead bodies of deceased Tulasamma and Nanjamma. The police took him to the place followed by these people. They went near Charmadi

Ghat, where accused No.1 shown them the dead body.

The police brought those dead bodies to the road and drew a panchanama as per Ex.P-3.

The witness has also stated that accused No.5 was the first wife of Rajegowda, who was married to him about twelve years ago. Accused No.5 Manjula was quarrelling with her mother-in-law, in which regard, a panchayath was held, wherein, it was agreed that

Rajegowda and accused No.5 should give 3 bags of Ragi

(finger millet) and `500/- to Nanjamma every year.

However, since they did not keep up their undertaking, Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Nanjamma, with her daughters, filed a suit for partition, which was decided in their favour. Rajegowda after marrying Tualsi about five to six years back, was residing with her in his land in a hut. Accused No.5 was residing in the village separately. Nanjamma was also residing with Rajegowda in the hut. She has specifically stated that accused No.5 thinking that she has neither her husband nor the land, had got them murdered.

She was also subjected to detailed cross- examination by the accused, wherein she has adhered to her original version.

20. PW-7 (CW-15) Nanjappa has stated that based on police request, he went to Arkalgud police station on

27.10.2006. All the five accused were present therein.

Accused Nos.2, 3 and 4 stated that if they were accompanied, they would produce their clothes, chopper Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

and battery. Accordingly, the police took accused Nos.2 to 4, this witness (CW-15) and CW-16, in their jeep to

Gejjagaranahalli via Hassan-Udaipura. First they went to the house of accused No.3, who from inside his house, brought and produced a shirt and a pant, which the police seized by drawing a seizure panchanama.

The witness identified those clothes as MOs.5 and 6 and the panchanama was marked as Ex.P-7. Thereafter, all of them went to the house of accused No.4, who also from inside his house, brought and produced shirt, pant and a battery. The witness has identified those articles as Mos.7, 8 and 9 and the panchanama as Exs.P-8 and

P-9. After that, police took them to the house of accused No.2, who from inside his house, brought a

T-shirt, pant and a chopper. While drawing the mahazar, the police seized those articles. The witness Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

has identified the shirt, pant, chopper as MOs.10, 11, and 12 and the mahazar at Exs.P-10 and P-11.

In his cross-examination, he has adhered to his original version.

21. PW-8 (CW-17) Swamygowda has stated that when the police had come near the house of Rajegowda, he was present. He saw two blood stained mats and a rod inside the hut. He also saw the blood stains on the ground. The police collected the sample soil, blood stained mat and rod by drawing a mahazar. The police also seized the chilli powder found in that place. The witness has identified the mahazar at Ex.P-2 and the articles at MOs.1, 2, 3 and MO.13.

The denial suggestions made to him in his cross- examination were not admitted as true by him. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

22. PW-9 (CW-11) Basappa in his evidence has stated that he knew all the three deceased who were murdered. Police had summoned him at the time of inquest panchanama. Police had also shown him the accused, who stated that they would show the place or the spot of the murder. Accordingly, police took him to

Mudaganuru along with the accused. The accused took them to the house of Rajegowda, where the police drew a panchanama of the spot of the offence. Accused

Shankaregowda produced an iron rod stating that the same was used for assault. The witness has identified the said rod as MO-14 and the panchanama was marked as Ex.P-12. From there, they were taken to the house of accused No.5 Manjula. Said accused from inside her house, produced a black pant and a blue shirt stating that they pertain to her brother accused No.1. The witness has identified the shirt as MO-15 and also the Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

pant. The police wrote a mahazar marked as Ex.P-13 in his presence, for which, he has put his signature. From there, they went to a place leading to Kottigehara.

About 4 to 5 KMs. from Kottigehara, they showed the place where the dead bodies of Nanjamma and Tulasi were thrown. The police drew a panchanama. Accused

No.3 Manja produced a rod. The police seized the same and identified it as MO-17. He identified the mahazar as

Ex.P-14. The witness has further stated that thereafter going half KM ahead, they showed a place stating that the dead body of Rajegowda was thrown in that place.

Police drew a panchanama of the said place also, which the witness has identified as Ex.P-15. From there, they took him to Dharmasthala where the child Rangaswamy was abandoned there and it was in the same place, the accused had taken bath and washed the car. The police drew a panchanama as per Ex.P-16 of the said place. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

The witness has also stated that the deceased Tulasi was the wife of deceased Rajegowda. Accused No.5 was married about 14 to 15 years ago to Rajegowda. A panchayath was also held. The witness has also stated that he had also been to the spot of offence which was the house of Rajegowda and had seen blood, chilli powder and rod and a watch there.

He was subjected to a detailed cross-examination, and he has adhered to his original version.

23. PW-10 (CW-24) Mahesha in his evidence has stated that on 19.10.2006, in the night at about 11.00 to 11.15 p.m., he was sleeping in the cattle shed in

Mudaganuru village. He had also a barrel to process tobacco, as such, he had slept there. In order to attend nature’s call, he went towards the stone well at about

11.00 to 11.30 p.m. At a small distance from there, Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

there is the hut of Rajegowda. There appeared to be some disturbance in the said hut with sound of yelling.

He stood there for ten minutes and proceeded a bit further. He saw that a red colour Maruti van was parked in front of said hut of Rajegowda bearing registration

No.KA-02-M-7376. He could notice the same by flashing the torch which he was holding. Three persons were being lifted and shifted to the van. He hid himself in a bush. He feared and returned to the barrel house and slept. Because of the fear, without informing anybody in the village, in the morning at about 5.00 a.m., he left for Siddagange in a vehicle coming to their village and returned to Mudaganuru on 24.10.2006. By that time, the people in the village knew that Rajegowda, Tulasi and Nanjamma were murdered. He was taken to

Arkalgud Police Station on 25.10.2006. Maruti red colour van was parked in front of the police station. All Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

the accused were made to sit in the police station. At the request of the police, he identified the van and the accused. One of the accused was the brother of

Manjula, as he was visiting their village, thus, he knew him. A person by name Shankara also had visited their village along with the younger brother of Manjula. He knew Manjula also. The remaining accused, he saw in the police station. The police enquired him about this case. He has also stated that he had seen three bodies being put in the van and the van leaving the place by shutting its door, towards the house of Manjula. He has stated that he could identify the van if shown to him.

He was subjected to a detailed and searching cross-examination from the accused side, wherein he has adhered to his original version.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

24. PW-11 (CW-28) Abdul Rehaman, has stated that on 23 rd day, at the request of the police, he went to a place called Haneyuruhalli, along with two other persons by name Ramesh and Shivakumar. Hassan

District police, Banakal police and a doctor and accused were there. After accused Shankara had shown the dead body, they brought up the dead body on the road.

Two more dead bodies were removed like that from the valley/ditch about 30 to 40 ft. beneath the road level.

The dead bodies had injuries on them.

In his cross-examination, further details have been were elicited regarding the manner of bringing out the dead bodies from the ditch.

25. PW-12 (CW-36) Shankarshetty B, the Manager in the Information Centre at Dharmasthala, has stated that any orphan child, person or handicapped person found in Dharmasthala without their relatives Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

accompanying or persons, would be brought to the

Information Centre at Dharmasthala. The Information

Centre would give information to the police and also make an announcement in that regard frequently on the public address system (loudspeaker). On 20.6.2006, pilgrims brought a male child stating that the said orphan child was found near Netravati river. The said child was aged about 2 years. He enquired from the persons who brought the child as to how they had found the said child and were there any relatives of the child. Those people told them that they noticed the said child while they were bathing in the river and the child was alone without any care taker nearby him. As per the say of the people in that place, they had brought the child to the Information Centre. The witness has further stated that the said child was in their custody for about four to five days. Thereafter, Arkalgud police went there Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

and narrating about the case with respect of the parents of the child that was registered in their station, and took the child with them. As per law, the child was handed over to them. The evidence of this witness was not disputed in his cross-examination from the side of accused.

26. PW-13 (CW-42) Venkatesh H, has stated that while working in Public Works Department at Arkalgudu, on 30.10.2006, he received a requisition from Arkalgudu police. On 8.11.2006, as per the place shown to him by

Sri A.P.Venkatesh, Police Constable, he visited

Mudaganuru and prepared a sketch of the spot shown by him. The said sketch was identified by this witness at

Ex.P-17.

He was also subjected to cross-examination from the accused side.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

27. PW-14 (CW-37) N.T. Dinesh, Photographer, has stated that Banakal police had called him to take photographs and took him near Charmadi Ghat. He was shown a dead body, of which, he has taken 10 photographs in that place. The witness has identified those photographs together at Ex.P-18. The said evidence is not disputed by the accused.

28. PW-15 (CW-35) Prashanta H.N., has stated that an inquest panchanama as per Ex.P-19 was drawn in this case near Chrmadi Ghat.

29. PW-16 (CW-25) Jagadish, has stated that he knew Rajegowda, his wife Tulasamma and mother

Nanjamma and also accused No.5. Rajegowda was residing with his wife Tulasi on his land. Manjula was residing in the first house in the village. On

20.10.2006, was day of Diwali. On that morning, blood Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

stains, chilli powder, salake (crowbar), were found in the house of Rajegowda, but, Rajegowda, Tulasi and

Nanjamma were missing, as such, search was going on for them. He enquired Manjula near her house as to why it is being done and what could have happened, for which, she stated that, she has nothing to do with that.

Noticing the blood stained clothes in the corner in front of the house, he enquired Manjula about the same, for which, she stated that on account of her husband, she had lost her mental peace and many things had happened and partition in the property had taken place, as such, she spoke to her brother Shankaregowda, who, making use of his friends, had committed murder on the previous day. She asked him not to reveal the same before anybody. The clothes that were fallen there were blood stained, which was blue colour shirt and black pants. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

The witness has further stated that on 20 th day, in the evening, one Thimmegowda has received a telephone call informing them that a dead body was found in Charmadi Ghat and in his pocket, a telephone number was found. Konanuru police had made that telephone call. After searching entire village, all went to Charmadi Ghat. It was told that, at first, they found the dead body of Rajegwoda, still he did not reveal anything. When he went to the police station on the

25 th day, he found five accused in the cell, then he saw them. On 26 th day, at about 8 or 9 a.m., the police had come for a mahazar. Police brought cothes from the house of Manjula, which had no blood stains.

He was subjected to a detailed cross-examination from the accused side. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

30. PW-17 (CW-21) Yogesha, has stated that police has taken his signature to the mahazar in the police station in Ex.P-20. He stated that the iron rod and other articles which he was seeing in the Court was not seen by him in the police station. The witness was treated hostile and the prosecution was permitted to cross-examine him. However, the prosecution could not get any support from him.

31. PW-18 (CW-40) Dr. Seema, in her evidence has stated that while she was working as Lady Medical

Officer in M.G.M. Hospital, at Mudigere, on 24.10.2006, at the request of police, she conducted the post mortem examination on the dead body said to be of Tulasi as per

Ex.P-21. She has stated that the dead body was of a female, aged about 30 years, moderately built and nourished. Body was in a process of advanced decomposition. The face, neck, chest, abdomen and Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

genitals were bloated up and the skin was pealed off here and there throughout the body. Maggots were present and coming out from throughout the body.

About the wounds, the witness has stated that she noticed (1) a lacerated wound over right side of head with fracture of right side of frontal bone and parital bone opening the cranium to exterior 7.5 cm x 2.5 cm.,

(2) a lacerated wound over right infra orbital region

3 cm x 2 cm, bone deep, right maxilla exposed,

(3) a lacerated wound over left arm 4 cm x 1.5 cm, bone deep, left humerus exposed, (4) a lacerated wound over right leg lateral aspect 4 cm x 2 cm. were found. She opined that the cause of death was due to shock and haemorrhage, as a result of multiple injuries, including head injury. She has opined that time since death was 5 to 7 days. She identified the post mortem report given by her in this regard as Ex.P-21. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

32. PW-19 (CW-44) Omkarmurthy, in his evidence has stated that while working as a Police Constable in

Banakal Police Station, on 21.10.2006, in the morning at about 10.00 a.m., based on an information that a dead body was found in Charmadi Ghat, Sub-Inspector took him along with other staff to the said place. While examining the dead body, they noticed a slip containing the telephone number, and they made a call to the said number. People acquainted with the deceased, came to the spot at 4.00 p.m. Thereafter, the dead body was brought to Government Hospital, Banakal, and then shifted to District Hospital, Chickmagaluru. He was deputed to watch the dead body.

33. PW-20 (CW-41) Nagesha, in his evidence has stated that while working as Secretary of Hulikal Grama

Panachayat, on the request of the complainant police, Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

he had given details of the house of Rajegowda as per

Ex.P-23.

34. PW-21 (CW-48) Devaraju, Police Constable of the complainant police station has spoken about carrying 21 articles pertaining to this case to Forensic

Science Laboratory, Mysuru, on 6.11.2006 and thereafter carrying two more articles on 8.11.2006 to

Bengaluru.

35. PW-22 (CW-49) Satyanarayana, Police

Constable of Arkalgudu police station, has stated that he had assisted CW-62 in arresting accused Nos.2, 3 and 4.

36. PW-23 (CW-38) Dr.Eklas Ahamed, has stated that he has been working as a Medical Officer in Primary

Health Centre, Banakal, since four years. On

21.10.2006, he received a call from Banakal Police requesting him to come to Charmadi Ghat to condut Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

post mortem examination on dead body. Accordingly, he went to the said spot and conducted the post mortem examination between 6.00 to 7.00 p.m. He has stated that the deceased was aged about 40 years, with moderate built, face was swollen, tongue protruded, incised wound was present on the back side of the head measuring ½ x 2 x ½ inch. There was a ligature mark around the neck from thyroid to nape of the neck, measuring about 1 inch width and 19 inches circumference, lacerated wound below the left ear about

½ x 2 inches was found, chest wall was swollen with multiple superficial abrasion, massive scrotal swelling was found and hyoid bone was fractured. By his examination, he came to an opinion that the death was due to asphyxia, as a result of strangulation. He has also stated that on 1.12.2006, complainant police had shown him a chopper, a red pipe and a rope seeking Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

for his opinion. On examining the same, he has given his opinion as per Ex.P-25. He identified rod, pipe and chopper in the Court and stated that with those weapons, it is possible for the injuries recorded in

Ex.P-24 to be caused. He has also stated that when he saw the dead body, he also noticed rope on his neck, which the police took away.

In his cross-examination, the witness has stated that by using rope shown in the Court, if a person is strangulated, ligature mark would be larger in size than what was mentioned in Ex.P-24.

37. PW-24 (CW-55) Ramanath B.R., in his evidence has stated that while working as Police Head

Constable, in the office of Circle Inspector of Police, at

Arakalgudu, on 23.10.2006, as per the directions of

CW-62, joined by the other staff, he accompanied them Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

along with accused No.4 Shankara. All of them went in their jeep to Mangalore and from there, to a place after

Banakal, called Anivaruhalla. There the accused had shown them two dead bodies, which were identified by

Puttananjamma as that of her mother Nanjamma and of

Smt.Tulasi. He conducted inquest panchanama on the dead body of Nanjamma and sent it for post mortem examination. He identified the said inquest panchanama at Ex.P-6.

38. PW-25 (CW-61) N. Chandrappa, in his evidence has stated that while working as the Circle

Inspector of Police of Mudigere Circle, on 21.10.2006, at about 2.00 p.m., CW-59 telephoned him, informing that an unidentified dead body was found in Charmadi Ghat and it was a case of suspected murder. On the same afternoon, at 3.00 p.m., he went to Banakal Police

Station and perused the first information report and Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

joined by his staff, went to the place where the dead body was said to be found. He got the photograph of the dead body taken through the photographer as per

Ex.P-18 and prepared spot sketch as per Ex.P-27, also drew a panchanama of the spot in the presence of panchas as per Ex.P-28. The articles found near the dead body i.e., iron pipe, pocket diary, rubber mats

(used in cars), a rope measuring 27 inches in length found on the neck and the clothes found on the dead body, including a match box, a pendant, wrist thread, were subjected to property form and submitted to the

Court. He has also stated that on the same evening, he conducted the inquest panchanama in the presence of panchas and recorded their statements in the process.

He got the post mortem examination of the dead body done through the doctor on the spot. Later he sent the dead body to the mortuary at Chickmagalur. On Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

22.10.2006, Puttananjamma, Rajamma, Shantamma,

Krishnegowda, Swamygowda and others identified the dead boy as that of Rajegowda. He also came to know that a complaint came to be registered at Konanuru police. He delivered the dead body for cremation and contacted Konanuru police and got information about

Crime No.223/2006. After getting the permission, transferred the entire investigation done by their station in this case to the Konanuru police. He also recorded the statement of Dinesha. The witness has identified the articles said to have been subjected by him to property form at MO.19 to MO-31. The denial suggestions made to him in his cross-examination were not admitted as true by him.

39. PW-26 (CW-34) Venugopal, in his evidence has stated that while he was trekking, he saw the police conducting a panchanama on the dead body of Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Rajegowda. He has signed the said panchanama, which he has identified at Ex.P-28. He has also stated that near the said dead body, an iron rod, gas card, car mats, match box and other articles which were in total twentyone in number were found.

40. PW-27 (CW-50) Chidambara Murthy, a Police

Constable of Arkalgud police station has stated that on

23.10.2006, he was deputed for tracing of the accused.

While he was on duty, he traced accused No.1 in the Bus

Stand at Channarayapatna, whom he produced before his superiors. He has identified the said accused in the

Court. On 25.10.2006, accompanying CW-62 and others, he arrested accused Nos.2 to 4. Denial suggestions made to him in his cross-examination were not admitted as true by him.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

41. PW-28 (CW-58) P.M. Malleshayya, has stated that while working as ASI at Banakal Police Station, on

21.10.2006, he was informed by his Police Sub-

Inspector that an unidentified dead body was found fallen in Charmadi Ghat, joined by his staff, he went there. CW-59 drew a spot panchanama. He was deputed to keep watch the dead body. Thereafter, the said dead body was shifted to District Hospital,

Chickmagalur.

42. PW-29 (CW-23) Swamy @ Shivaswamy, though was projected as a witness for seizure panchanam at Ex.P-30, has not supported the case of the prosecution. He has stated that he put his signature to the same in front of the police station and at the request of the police. Even after treating him hostile, the prosecution could not get any support from him in his cross-examination. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

43. PW-30 (CW-52) Renukaiah, has stated that as a Police Constable of complainant police, he has carried express report to the Court of this case on 23.10.2006.

44. PW-31 (CW-49) J.T. Swamy, has stated that while working as Police Sub-Inspect of Banakal Police

Station, on 21.10.2006, at 1.00 p.m., based on telephonic information, he went near Alekhan Horatti cross near Charmadi Ghat and noticed a dead body of a male aged about 30 to 40 years. By examining it, he suspected that somebody had murdered him and to cause disappearance of the evidence, thrown the dead body there. In this regard, he registered a crime in their station Crime No.95/2006 and submitted FIR to the

Court as per Ex.P-32. He entrusted further investigation to CW-61. He was also present while CW-61 drew a panchanama in the spot as per Ex.P-28. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

45. PW-32 (CW-60) Venkatachalapathi, has stated in his evidence that while working as Police Sub-Inspect of Konanuru Police Station, on 21.10.2006, at about

10.00 a.m., he received a written complaint lodged by one Sri Chandregowda and he registered Crime

No.223/2006. He submitted FIR to the Court as per

Ex.P-33. He identified the complaint at Ex.P-1. On the same day, he visited the place of offence and drew a panchanama of the scene of offence as per Ex.P-2 and from the spot, seized a chilli powder pocket, pieces of mat, sample soil, blood stained soil, iron rod and a watch. He recorded the statement of one Rajappa in the spot. On 23.10.2006, based on the statement given by

CW-5, he incorporated Sections 302 and 201 of IPC in the same Crime No.223/2006. He entrusted further investigation to Circle Inspector of Police. As per the direction of Circle Inspector of Police on 24.10.2006, he Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

took custody of accused No.5 Manjula at Mudaganuru and produced her before the Investigating Officer. He also collected the seized articles in the Court at MO.1 to

MO.4. The denial suggestions made to him in his cross- examination were not admitted as true by him.

46. PW-33 (CW-62) M.N.Shashidhar, has stated in his evidence that while working as Circle Police

Inspector at Arkalgudu, he took up further investigation in this case on 23.10.2006 from CW-60. On his instruction, on the very same day, his staff produced accused No.1 Shankaregowda before him. He recorded his voluntary statement as per Ex.P-36. Accused revealed in his voluntary statement that if he was accompanied, he would show the place where deceased were murdered and dead bodies were thrown and would also produce the clothes and iron rod used in the commission of the crime and would also show the Maruti Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

van used for transportation of dead bodies. He arrested the accused on the same day, whom he identified in the

Court. The witness has further stated that after recording voluntary statement of the accused, he summoned Thimmegowda and Rajegowda as panchas and joined by them and as per the instruction of the accused, proceeded to Monakal via Mudigere as shown by the accused. After making the jeep to stop, the accused led him to Aneyuruhalla and taking them to a slope in the forest area, had shown them the dead bodies of Nanjamma and Tulasi. He (PW-33) drew the mahazar in that place as per Ex.P-4 and with the help of the general public, brought both the dead bodies on the side of the road, directed CW-55 to conduct inquest panchanama on the dead body of Nanjamma and himself and conducted inquest panchanama on the dead body of Tulasi, which has been identified as ex.P-3. He Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

also recorded the statement of CW-7 and CW-11, who were present then. He sent the dead bodies to the hospital at Mudigere. Thereafter, the accused took them half KM ahead and had shown them a spot where the dead body of Rajegowda was thrown. He inspected that dead body. He recorded the statements of CWs-26, 27,

28 and 29. After getting the post mortem examination of the bodies done, he delivered the bodies to the relatives of the deceased.

The witness has further stated that on 25.10.2006, he took accused to Doddakande village and based on the information given by the accused, he took accused No.2 into custody, who stated that the act was committed in

Maruti van bearing registration No.KA-02-M-7376 parked in their house. He seized the said vehicle by drawing a panchanama in the presence of panchas as per Ex.P-30. Thereafter, accused No.1 took him near Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Khattrigatta gate and had shown accused Nos.3 and 4, who were taken into custody by him. After returning to the station, he arrested them and on the same day,

Police Sub-Inspector of Konanuru police station produced accused No.1 before him. He recorded the statement of accused No.1 and the voluntary statements given by accused Nos.2 to 5. Accused No.2 in his voluntary statement has stated that he would show chopper used in the commission of the crime and pant and shirt worn by him at the time of commission of the crime. Accused No.3 stated that he would show the place of offence and would also produce an iron rod used in the commission of crime and the clothes worn by him at the time of commission of crime. Accused No.4 also stated in his voluntary statement that he would show the place of the offence and the battery used in the commission of the crime and a pants and shirt worn by Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

him at that time. Accused No.5 in her voluntary statement stated that she would produce the clothes worn by her.

The witness has further stated that on

25.10.2006, in view of the voluntary statements given by the accused, he summoned Basappa and

Krishnegowda as panchas to the station and giving them details of voluntary statement given by the accused, he took them along with staff near the house of Rajaiah as per the instruction of the accused, murdering of

Nanjamma was shown. He identified the place where

Tulasi and Rajegowda were murdered inside and examined it. Accused took them 100 ft. to the North of the house and brought an iron rod from inside the bush and produced it, which he seized under a mahazar at

Ex.P-12 and seized the article. Accused No.5 took them to her house and produced pants and shirt stating that Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

accused No.1 had worn it at the time of commission of crime. He seized the same by drawing a panchanama as per Ex.P-3. In the same jeep, along with accused, they went a little bit away from Kottigehara. They stopped the jeep and shown a place where the dead bodies were thrown. Accused No.3 produced an iron rod allegedly used in the commission of crime, which he seized by drawing a panchanama as per Ex.14.

Thereafter, while going towards Dharmasthala, they also showed them the place where the dead body of

Rajegowda was thrown. Then they took them near

Netravati river at Dharmasthala and showed them the place where Maruti van was washed by them. He drew a panchanama of that spot as per Ex.P-15. They also stated that on the steps of the bank of the river, they had left the two years old child of Rajegowda. He conducted a mahazar as per Ex.P-16 in the said place. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

From there, he went to Information Centre at

Dharmasthala and on enquiry, he took custody of the child who was brought there by the pilgrims. After returning to his office, he subjected the seized articles to property form and reported to the Court.

The witness has also stated that on 27.10.2006, along with accused No.1 to 4 and accompanied by panchas, he went to Gejjagaranahalli. Accused No.3 went near his house and produced pants and a shirt as the clothes worn at the time of the commission of crime.

He seized them by drawing a panchanama as per

Ex.P-7. Accused No.4 took them near his house and from inside the house, brought pants and a shirt and produced it stating that they were worn at the time of commission of crime. He seized them by drawing a panchanama as per Ex.P-8. Accused also produced a battery, which also he seized. Accused No.2 took them Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

to his house at Dodde village and produced pants and a shirt stating that they were worn by him at the time of commission of crime. He seized them under a panchanama at Ex.P-10. The said accused also produced a chopper stating that the same was used in the commission of the crime, which also he seized under panchanama at Ex.P-11.

He has also stated that on 28.10.2006, he requested PWD authorities to prepare a sketch of the scene of offence and to submit the same. He also requested the Village Officer at Hulikal to submit records. On 29.10.2006, he requested the RTO authorities, Hassan, to furnish the documents with respect to the seized Maruti van. He produced the accused before the Court and submitted them to judicial custody. On 31.10.2006, he recorded the statements of some of the charge sheeted witnesses. During his Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

investigation, he also collected post mortem examination report of all the three deceased as per

Exs.P-20, 22 and 24. He sent seized articles for their examination to the Forensic Science Laboratory, collected the documents from RTO authority and also collected sketch of scene of offence prepared by PWD, sent the weapons seized during investigation to the doctor asking for his opinion and received the opinion given by the doctor. Pending receipt of FSL report, on completion of investigation, he filed the charge sheet against the accused in the Court. Thereafter, he received FSL report and submitted the same to the

Court as per Ex.P-43.

This witness was subjected to a detailed cross- examination, wherein he adhered to his original version. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

47. PW-34 Kumaraswamy in his evidence has stated that he received FSL report as per Ex.P-47 and

Ex.P-48 and produced them in the Court.

48. PW-35 (CW-64) P.Mallesh, the Officer in the

Forensic Science Laborary at Bengaluru, has stated that he has examined the articles sent by the Investigating

Officer in this case and has submitted his report as per

Ex.P-47.

49. PW-36 (CW-66) Gaonkar, the Assistant

Director of Forensic Science Laboratory, Mysuru, has also stated that he too examined the articles sent to their laboratory by the complainant police in this case and has given his report as per Ex.P-48.

50. PW-37 (CW-67) S.K.Krishna Raju, Assistant

Director of Forensic Science Laboratory, Bengaluru, also has stated that he too examined the articles sent by the Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

complainant in this case and has given his report as per

Ex.P-43. He has identified the articles in the Court.

51. A perusal of the evidence of the prosecution witnesses would go to show that in the evidence of PW-

3, PW-6, PW-18, PW-23 and PW-33 they have stated that Rajegowda, Tulasi and Nanjamma were residing in their hut on their land at Mudaganuru Village and that all three of them were murdered allegedly on the night of

19.10.2006. This has not been specifically got denied from the side of the accused in the cross-examination on behalf of the accused.

52. PW-3 Puttananjamma in her evidence has stated that the inquest panchanama on the dead body of deceased Nanjamma was drawn in her presence. The said inquest panchanama is at Ex.P-6. PW-5 Raja Naika also has stated that he too was a witness to the inquest Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

panchanama drawn on the dead body of deceased

Nanjamma. Both these witnesses have opined that the death was homicidal. PW-24, the Head Constable also has stated that the inquest panahcnama at Ex.P-6 was drawn by him. PW-33, the Investigating Officer has corroborated the evidence of PW-24 that he drew inquest panchanama on the dead body of Nanjamma as per Ex.P-6. Further said PW-33 himself has stated that at the same time, he drew inquest panchanama in the same place on the dead body of deceased Tulasi in the presence of panchas. The said evidence of PW-33 is corroborated by PW-4, who has stated that he was pancha for the said inquest panchanama drawn on the dead body of Tulasi as per Ex.P-3. The panchas in the said inquest panchanama as per Ex.P-3 also have opined that since the dead body of Tulasi had sustained several injuries upon it, the death was homicidal. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

53. PW-26 - Venugopal, has stated that inquest panchanama on the dead body of Rajegowda was drawn in his presence as per Ex.P-19. PW-25 N.Chandrappa, one of the Investigating Officer in this case, has stated that the said inquest panchanama as per Ex.P-19 was drawn by him in the presence of panchas, including PW-

26. In the said inquest panchanama, the panchas have noticed the presence of ligature mark around the neck of the deceased and multiple injuries on the body. With the said observation, the panchas have opined that the death of Rajegowda was also homicidal. All these three inquest panchanamas and the opinion of the panchas regarding the nature of death of the deceased has not been specifically or seriously disputed by the accused.

Therefore, prima facie, the inquest panchanamas and the supporting evidence of the witnesses to those Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

panchanamas shows that the death of all the three deceased were homicidal.

54. As already observed, PW-23 Dr.Eklas Ahmed, has given evidence about conducting the post mortem examination by him on the dead body of Rajegowda and giving his report as per Ex.P-24. The said doctor has also observed multiple injuries on the dead body of the deceased Rajegowda and also ligature mark around the neck from thyroid to nape of the neck, measuring about

1” width and 19” circumference. He has also observed fracture of hyoid bone and ultimately has come to an opinion that the death of Rajegowda was due to asphyxia, as a result of strangulation. In this way, the opinion of panchas that the death of Rajegowda was homicidal is further corroborated by medical evidence.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

PW-18 Dr.Seema, as observed above, has spoken about conducting autopsy on the dead body of

Smt.Tulasi and Smt.Nanjamma and submitting post mortem report as per Ex.P-21 and Ex.P-22 respectively.

As already observed above, the said doctor noticed multiple injuries on both the dead bodies. The doctor noticed presence of fracture of right side of frontal bone, parital bone opening the cranium to exterior and also lacerated wound over right infra orbital region with the exposure of right maxilla and a bone depth lacerated wound over left arm with left humerus exposed and a lacerated wound over right leg on the lateral aspect. On noticing these injuries on the body of Smt.Tulasi, the doctor has opined that the death was due to shock and hemorrhage as a result of multiple injuries, including the head injury.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Similarly, on the dead body of Smt.Nanjamma also, the doctor has observed several injuries, including lacerated wound over head with depressed fracture of both parital bone and right side of occipital bone opening the cranium to the exterior and also lacerated wound over right infra auricular region exposing the ramus of mandible on right side, a fracture of both bones of right forearm and exposing the fractured bone ends to exterior was also noticed. In light of presence of these multiple injuries on the dead body, the doctor has opined that the death of Smt. Nanjamma was also due to shock and hemorrhage as a result of multiple injuries, including the head injury. According to the doctor, in both the cases of Smt.Tulasi and

Smt.Nanjamma, passage of time since death was 5 to 7 days up to the date of post mortem examination. Thus, the medical evidence with respect to the nature of death Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

of all these three deceased corroborates with the opinion of the panchas to the effect that the death of all these three persons was homicidal in nature.

Considering the medical opinion as to the time since death at the time of post mortem examination, which was conducted on 24.10.2006, the alleged occurrence of death date backs to 19.10.2006 or approximately, a day prior to it. Since PW-3 Nanjamma has specifically stated that on the previous day, deceased Rajegowda had been to her village for purchasing beedi (thin cigarette/mini cigar), it is established that on 18.10.2006, he was seen alive. As such, from the medical evidence, when interpreted in the light of evidence of PW-3, the death of all these three persons must have been taken place on the night of 19.10.2006.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

This is further corroborated by the evidence of PW-

10, who claims to have seen some disturbance in the hut of Rajegowda on the night of 19.10.2006 and claims to have seen shifting of three bodies from the said house on the same night. The said evidence of PW-10 is also to the effect that the said incident of he hearing some noise in the house of Rajegowda and seeing the shifting of the bodies being on the night of 19.10.2006, the death of all these three persons which are homicidal in nature are proved to have taken place on the night of

19.10.2006. Further, PW-3, PW-6 and PW-9, have specifically stated that all these three persons were murdered, which is not disputed by the accused. The medical evidence also leads to believe that the homicidal death of all these three persons are murder and considering the circumstance of the case and also the presence of blood stains in the house of Rajegowda as Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

could be seen in the panchanama as per Ex.P-2 and also the presence of an iron rod in the said house and the presence of blood stained mats, spilling of chilli powder, would all lead to a conclusion that the homicidal death of deceased Rajegowda, Tulasi and Nanjamma is murders.

55. Admittedly, there are no eye witnesses to the incident of murder of Rajegowda, Tulasi and Nanjamma in this case. So also, there are no eye witnesses to the alleged conspiracy and kidnapping of Master

Rangaswamy, the son of the deceased Rajegowda. As such, the entire case of the prosecution is based upon circumstantial evidence.

56. It is the case of the prosecution that accused hatched a criminal conspiracy, the execution of which resulted in the murder of deceased Rajegowda,

Smt.Tulasi and Smt.Nanjamma and kidnapping of child Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Master Rangaswamy. It is the argument of the learned counsel for the accused that the alleged criminal conspiracy has not at all been proved by the prosecution. Neither is there any evidence to prove the alleged conspiracy nor is there any circumstance to infer criminal conspiracy. Learned counsel for accused No.3 and 4 in his argument on this point relied upon a judgment of Hon’ble Supreme Court in Leo Roy Frey

–vs- Superintendent, District Jail, Amritsar and another (AIR 1958 SC 119) , wherein the Hon’ble

Supreme Court has observed that the offence of conspiracy to commit a crime is a different and distinct offence from the crime that is committed which is object of conspiracy because conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed; equally the crime Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

attempted or completed does not require the element of conspiracy as one of its ingredients.

Section 120 A of Indian Penal Code defines conspiracy as below:

“ Section -120 A. Definition of criminal conspiracy – When two or more persons agree to do, cause to be done,-

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

Thus, in order to constitute the said offence, there must be an agreement between two or more persons and the said agreement must relate to doing or causing to be done either an illegal act or an act which is not illegal, but, is done by illegal means. In this case, neither the charge sheet disclose as to where and when conspiracy originated and who are the alleged conspirators. None of the witnesses, including the

Investigating Officer has spoken anything about the alleged conspiracy said to have played a role in this case. It is the argument of learned HCGP that conspiracy in this case has to be inferred by taking the overall circumstance of the case. Assuming that Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

conspiracy is required to be inferred, by looking at the circumstance of the case, as observed above, none of the prosecution witnesses from PW-1 to PW-37 have any where whispered about any conspiracy said to have taken place among any of the accused in this case.

It is only PW-16 who has stated that to his specific enquiry, accused No.5 Manjula told to him that she spoke with her brother (accused No.1) and that he, joined by his friends, has committed the murder. The said statement of PW-16 is an alleged extra judicial confession by accused No.5 before him. The evidence of

PW-16 does not mention nor does it give details as to what talking to accused No.5 had with accused No.1 and who were the friends of accused No.1 and also whether any plan was designed or hatched by them. Even according to PW-16, accused No.5 told him that, joined Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

by his friends, he had committed murder. She has not stated as to who was joined by whom. Further, even according to him, it is not the confession of accused

No.5 that all the five accused jointly has committed the murder of three persons. According to PW-16, PW-5 told him that her brother, accused No.5 had committed murder, which means, alleged murderer was one person only. Thus, the evidence of PW-16 also does not show that there was any conspiracy among the accused inter se prior to the commission of the alleged offence.

57. The other material witnesses who have spoken about the alleged murder of the deceased are mainly

PW-3, PW-6 and PW-9. Those three witnesses, except stating that the deceased were murdered, have not whispered anything about the alleged conspiracy which is said to have taken place. Further PW-3, PW-4, PW-6, Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

PW-7 and PW-9 though have stated about the alleged recoveries said to have been made in their presence at the instance of accused, but neither the statement of those witnesses, about the alleged voluntary statements said to have been given by the accused nor the alleged production of the incriminating articles, said to have been produced by the accused, would in any manner lead to infer that there was any prior meeting of minds among the accused about the commission of crime nor give any impression that the accused had any prior meeting or agreement which can be called a conspiracy of commission of the alleged offence.

58. Even though PW-1 Shankaregowda had lodged a complaint on 21.10.2006 at 10.00 a.m. before the

Konanuru police alleging missing of his sister Tulasi, brother-in-law Rajegowda, their child Rangaswamy and mother of Rajegowda, Smt.Nanjamma, the police were Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

clueless till PW-31 J.T.Swamy, the Police Sub-Inspector of Banakal police station noticed a dead body in the afternoon of 21.10.2006 near Alekhan Horatti Cross on

K.M.Road. It is only thereafter the said Police Officer went there and picked up a telephone number of the village Mudaganuru and he made a telephone call. On the next day, PW-3 Puttananjamma, joined by other villagers, proceeded to the said place where the dead body was found in Charmadi Ghat and identified the same as that of her brother Rajegowda. It is thereafter, the actual investigation gained a momentum when said

PW-3 Puttananjamma gave a statement before the police suspecting the role of first wife of Rajegowda i.e., accused No.5 Manjula and brother of said Manjula i.e., accused No.1 Shankaregowda.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

59. Thereafter, on 23.10.2006 when PW-33 took up further investigation in this matter, he deployed his staff in order to trace the accused. Accordingly, on the same day, his staff – Head Constable 176 and Constable

PC-26, apprehended accused No.1 and produced before him. According to PW-33, said accused No.1 gave his voluntary statement before him as per Ex.P-36. The said accused No.1 in his voluntary statement stated before him that if he was accompanied, he would show them the place where Rajegowda, Tulasi and Nanjamma were murdered and also the place where their dead bodies were thrown. PW-33 has also stated that accused No.1 has further stated that he would also produce iron rod used in the commission of crime and also the clothes and the van in which the dead bodies were carried. According to PW-33, he summoned one

Thimmegowda and Rajegowda as panchas and revealing Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

to them the voluntary statement made by the accused

No.1, he, joined by the accused and panchas, went to the place at Haneyuruhalla after Kottigehara, where on a slope, accused showed them the dead bodies of

Nanjamma and Tulasi. According to PW-33, he drew a spot panchanama in that place as per Ex.P-4. He got inquest panchanama on the dead body of Nanjamma done through CW-55 (PW-24), who conducted it as per

Ex.P-6 and he (PW-33) himself conducted inquest panchanama on the dead body of Tulasi in the presence of PW-4 as per Ex.P-3.

60. According to PW-33, thereafter the accused

No.1 also took him to another place which was about half a KM away from the place where the dead bodies of

Tulasi and Nanjamma were found and accused No.1 showed him the place of Rajegowda. According to

PW-33, he verified the dead body there. The said Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

Rajegowda who was referred by PW-33, in his evidence as a pancha for the alleged recovery is not shown as a charge sheet witness. However, one M.V.Rajappa is shown as a charge sheet witness No.8, who was examined as PW-4, who has stated about he being present at the time of alleged recovery of dead body at the instance of accused No.1 on 23.10.2006. Another alleged pancha Sri Thimmegowda has not been examined by the prosecution. Therefore, at the first instance, the Investigating Officer who is permitted to go through the case diary and give his evidence, had given the name of alleged pancha to the mahazar at

Ex.P-4 as one Rajegowda, when, in fact, the said mahazar shows the name of the pancha as M.V.Rajappa.

It is not the case of PW-33 that both M.V.Rajappa and

Rajegowda, whose name he has stated in his evidence, are one and the same. Thus, a suspicion is created in Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

the case of prosecution through the Investigating

Officer.

61. The said M.V.Rajappa who is shown as a pancha to the alleged recovery mahazar of two dead bodies at the instance of accused No.1, was examined as PW-4. the said witness in his examination-in-chief after stating about PW-1 Shankaregowda visiting the hut of Rajegowda and Tulasi, on the night of

22.10.2006, has stated that on the next day, at about

3.00 p.m., Konanuru police came near to the said shed and drew a scene of offence panchanama between 3.30 to 4.00 p.m. and seized the articles from the spot.

Thus, the said day which the witness has called as next day would fall on 23.10.2006. The same witness in his subsequent paragraph in his examination-in-chief has stated that after a shop in their village receiving a telephone call about Mudigere police finding a dead Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

body, on the next day, these people went to

Chickmangaluru Government Hospital. However, the witness has not stated the exact date, except calling it as `next day thereafter’.

In the very next paragraph of his evidence, the same witness has stated that on the next day,

Arkalgudu police summoned him to their police station and shown accused No.1, who, stating that he would show the dead body of Nanjamma and Tulasi, took them to Charmadi Ghat. Here also, PW-24 has not specifically stated on which calendar date the said `next day’ had fallen. Further, when his examination-in-chief is read in its entirety and the tenor of describing the `next day’,

(the said `next day’) it would be on 24.10.2006, whereas, according to PW-33, the Investigating Officer, the alleged recovery of the dead body of Tulasi and

Nanjamma was on 23.10.2006. Even if it is treated that Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

`next day’ stated by PW-4 in paragraph No.6 of his examination-in-chief, would fall on 23.10.2006 only, still, according to the said witness, the mahazar at

Ex.P-4 was drawn between 4.30 to 6.00 p.m. on that day after the accused No.1 was said to have shown the dead bodies of Nanjamma and Tulasi. In Ex.P-4, the said panchanama is shown to have been written between 4.00 p.m. to 4.30 p.m. on the spot, whereas, the very same witness, PW-4, as observed above, in the previous paragraph of his very same examination-in- chief has stated that in his presence, Konanuru police drew a spot panchanama as per Ex.P-2 in the hut/shed of Rajegowda in his lands at Mudaganuru and seized certain articles. If really PW-4 was also a pancha to

Ex.P-2, which according to him, was drawn on the next day of 22.10.2006, i.e., on 23.10.2006, he could not be present at Charmadi Ghat at the same time when the Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

mahazar as per Ex.P-4 was drawn. Even though Ex.P-2 shows the date as 21.10.2006, but the specific evidence of PW-4 is that on 22.10.2006, Shankaregowda visited the hut and on the next day afternoon at 3.00 p.m.,

Konanuru police came to that place and drew a panchanama as per Ex.P-2 in his presence, which should obviously fall on 23.10.2006. Therefore, the second suspicion as to the presence of PW-4 at the time of alleged recovery of the dead bodies of Tulasi and

Nanjamma arises.

62. PW-33 - the Investigating Officer, apart from stating that accused No.1 led them and showed the place in Charmudi Ghat where the dead bodies of deceased Tulasi and Nanjamma were found has also stated that apart from his staff and the accused, the sisters of the deceased and their relatives were also at the said spot. Thus, even according to the Investigating Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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Officer, apart from himself, accused and Panchas, there were other people including sisters and relatives of the deceased who were also present when accused No.1 was said to have showed the dead bodies to them.

Therefore, the evidence of sisters of the deceased who in the instant case is PW3 – Puttananjamma and PW6 –

Shanthamma are also material and important as already observed above. Both these witnesses were examined before the examination-in-chief and had stated that accused No.1 had stated before the police that they had thrown the dead bodies of deceased Tulasi and

Nanjamma in Charmudi Ghat and that, if was taken there, he would show them the said place as well the dead bodies. Accordingly, all of them including themselves (PWs.3 and 6) went there and saw the dead bodies of Tulasi and Nanjamma. However, both these witnesses in their cross examination have clearly Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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admitted a suggestion as true that by the time these people went to the place where the dead bodies of deceased Tulasi and Nanjamma were found, already the police were there in that place. PW3 has stated that they were Chikmagalur Police, whereas PW6 has stated that they were Mudigere Police (Mudigere is a taluk place in Chikmagaluru District). The said admission and statement made by PW3 and PW6 to that effect has not been denied by the prosecution by subjecting those two witnesses to cross examination on that aspect. As such, the evidence of both PWs.3 and 6 to the effect that by the time accused No.1 had led them to the place where the dead bodies of Tulasi and Nanjamma were found, the other police may be Mudigere or Chikmagaluru were already present at that place. As such, it cannot be taken that the dead bodies of Tulasi and Nanjamma were found or noticed for the first time by the police Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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only at the instance of accused No.1. Therefore, the argument of learned High Court Government Pleader that the dead bodies of Tulasi and Nanjamma were recovered at the instance of accused No.1 cannot be accepted.

63. It is also the case of the prosecution in the

Session Court that on 26.10.2006 accused led them to a place, a little bit away from the place called Kottigehara and shown them the place where they were said to have thrown the dead bodies of Tulasi and Nanjamma.

Thereafter, they also took them to another place at a distance of about half kilometer and showed them one more place as the place where the dead body of deceased Rajegowda was said to have been thrown.

According to PW33 - the Investigating Officer, he drew the Panchanama in those places. PW9 – Basappa also has given his evidence on similar lines. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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On this point Learned counsel for the accused vehemently submitted that since all the three dead bodies were already found by the police themselves, the question of any of the accused showing any of those dead bodies at a subsequent time to the police does not arise and as such the same cannot be considered as a recovery within the meaning of law. Learned counsel for accused Nos.3 and 4 in his argument further added that there was no discovery or recovery made at the instance of the accused in this case since the police themselves by that time had discovered the place of the dead bodies and recovered the dead bodies also. In that regard, he relied upon the judgments of Hon’ble Privy Counsel and

Hon’ble Supreme Court of India. In Pullukuri Kotaiah and Others Vs. Emperor reported in AIR (34) 1947

Privy Counsel 67 while considering the condition necessary for operation of Section 27 of Evidence Act, the Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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Privy Counsel considered the principle underlying the said section in Paragraph 10 of its judgment as under:

“The condition necessary to bring S.27 into operation is that the discovery of a fact must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible but depend on the exact nature of the fact discovered to which such information is required to relate.”

In Thimma Vs. State of Mysuru reported in AIR

1971 SC 1871 at Paragraph 10 of the judgment the

Hon’ble Supreme Court was pleased to hold that once a fact is discovered from other sources there can be no Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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fresh discovery, even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the Investigating Officer in this respect, so that the protection offered by the wholesome provisions of Sections 25 and 26 of the Indian Evidence

Act, 1872 is not whittled down by mere manipulation of record of the case diary.

In Sukvindar Singh and others Vs. State of

Punjab reported in (1994) 5 SCC 152 the Hon’ble

Supreme Court was again pleased to reiterate the same principle by calling it as a rediscovery and was pleased to observe at Paragraph 16 of its judgment that Section

27 of the Evidence Act is an exception to the general

Rule that a statement made before the police is not admissible in evidence is not in doubt. However, under the said section, only so much of the statement of an accused is admissible in evidence as distinctly leads to Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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the discovery of a fact. Therefore, once the fact has been discovered, Section 27 of the Evidence Act cannot again be made use of to ‘rediscover’ the discovered fact.

It would be a total misuse – even abuse of the provision of Section 27 of the Evidence Act.

64. A similar view was once again reiterated by the

Hon’ble Supreme Court in Vijendar Vs. Sate of Delhi and connected matters reported in 1997 (6) SCC

171 wherein the Hon’ble Supreme Court was pleased to hold that a statement relating to a fact which has already been discovered is not admissible under Section

27 of the Evidence Act. At Paragraph 17 of its judgment, the Hon’ble Apex Court was pleased to observe that under Section 27 of the Evidence Act, if an information given by the accused leads to the discovery of a fact which is a direct outcome of the such information, then only it would be evidence but when Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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the fact has already been discovered, evidence could not be led in respect thereof. It further observed that in the case before it since, the dead bodies were already recovered by the police, the statement of accused as to where they threw the dead bodies was not admissible.

In the instant case also, as already observed above, it has clearly come on record in the evidence of

PWs.3 and 6, but according to PW33 – the Investigating

Officer, were present when accused No.1 is said to have shown the dead bodies. But, by the time accused took them to Charmudi Ghat to show the dead bodies of deceased Tulasi and Nanjamma, the local police were already there in that place. Thus, the place where the dead bodies were found to have been thrown, so also, the dead bodies were already noticed by the police, as such, the question of recovery of those two dead bodies Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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at the instance of accused No.1 does not arise.

Similarly, with respect to dead body of Rajegowda is concerned, admittedly, it was PW31 – the Police Sub

Inspector, who, based on the information had proceeded first and recovered the dead bodies without anybody else, much less the accused showing him the dead bodies. Therefore, even if it is taken that either accused

No.1 or any other accused had taken the police and the

Panchas and showed them the place where the dead bodies were said to have been thrown, the same cannot be considered as recovery or discovery made at the instance of the accused and as coming under Section 27 of the Evidence Act.

65. Apart from the recoveries of the dead bodies at the instance of the accused, it is also the case of the prosecution that incriminating articles such as iron rods, Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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chopper and the other articles used at the time of commission of the crime were also recovered at the instance of the accused. According to PW33 after giving their voluntary statement the accused stated that they would produce the incriminating articles used by them in the commission of crime and also led them and produced the articles. According to PW33, accused No.1 took them to the place which was the hut of Rajegowda stating that it was the same place where the murder was committed and about 100 feet to the north of the said hut, he took out an iron rod from the bush and produced it which was seized by PW33 by drawing the

Panchanama as per Ex.P12. Thereafter, accused No.5 took them to his house and produced pants and shirt stating that they were worn by accused No.1 at the time of commission of the crime which also PW33 seized by drawing of Panchanama as per Ex.P13. At the place Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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where the dead bodies of Tulasi and Nanjamma were found Accused No.3 also produced an iron rod which

PW33 seized by drawing the Panchanama at Ex.P4. PW9

– Basappa has also stated that the accused had shown them the place of murder and in that place accused No.1

– Shankaregowda produced an iron rod which was seized by the police. On the other hand, PW8 – Swamy

Gowda, who has stated that scene of Panchanama in the said hut of Rajegowda was drawn in his presence as per

Ex.P2, has specifically stated that in the said spot,

Panchanama of the iron rod found fallen was drawn which he identified at MO-30.

66. Even PW3 Puttananjamma, sister of deceased

Rajegowda in her evidence also has stated that when she went to the spot, which was the hut of deceased

Rajegowda, apart from seeing blood, wrist watch and chopper, she also noticed an iron road. Thus, according Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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to these two material witnesses, among whom PW7 is none other than the witness to the scene of offence

Panchanama, the alleged rod was found in the place where the offence was said to have been committed, as such, it was visible to the naked eyes to any one and accordingly, was seized while drawing the seizure

Panchanama. If that is the case, the question of any one, much less accused No.1 producing the said rod pursuant to his voluntary statement would not arise and that would also not fall under Section 27 of the Evidence

Act.

67. In this regard, learned counsel for accused Nos.3 and 4 has relied upon a judgment of Hon’ble Supreme

Court in Pohlya Motya Valvi Vs. State of Maharashtra reported in AIR 1979 SC 1949 . In the said judgment at

Paragraph No.15 the Hon’ble Apex Court on extracting a portion of the judgment of the High Court which it Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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confirmed has observed that, if the authorship of concealment is not clearly borne out by cogent and incontrovertible evidence but as the High Court observes left to be inferred by implication, then one should have a hesitation in placing implicit reliance upon it. More so, when it is a confessional statement which becomes admissible under Section 27 of the Evidence Act, though made in the immediate presence of the police officer.

In the instant case, when according to PWs.3 and

8, the said iron road was found lying in the place of the alleged crime, the question of concealment of such iron rod would not arise, as such, it is unsafe to believe the evidence of PW33 that accused No.1 went 100 feet away from the hut of Rajegowda and took out an iron rod from the bush and produced it, as such, the said alleged Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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recovery of iron rod at the instance of accused No.1 does not inspire any confidence to believe in it.

68. Further, according to PW33 and also PW9, accused No.3 produced an iron rod from the place in

Charmudi Ghat where the dead bodies of deceased

Tulasi and Nanjamma were found. PW9 has identified the said rod at MO-17 and Panchanama at Ex.P14. The very same PW9 in his cross examination has categorically stated that the iron road produced by accused No.3 – Manja was fallen at the place where the dead bodies were found. Therefore, it is clear that the said iron rod was not concealed by any of the accused, much less, accused No.3, as such, question of its discovery at the instance of accused No.3 would not arise. Therefore, the alleged seizure of iron rod at MO-

17 cannot be considered as recovery of an incriminating Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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article at the instance of accused and falling under

Section 27 of the Evidence Act.

69. According to PW33, accused No.2 also produced a chopper from his house in the commission of the crime which he (PW33) seized by drawing the

Panchanama as per Ex.P11. PW7 – Nanjappa in his evidence has stated that he was a witness to the said

Panchanama at Ex.P11. He has stated that the said chopper was produced by accused No.2 from his house.

However, PW7 was not able to give details as to the neighbourhood of the house of accused No.2. However,

PW3 – Puttananjamma in her evidence has categorically stated that when she went to the spot of the alleged offence which was the hut of Rajegowda, apart from seeing iron pipe, rod, spilling of blood and chilly powder she also noticed the chopper at the same place. Said statement of PW3, who is none other than the elder Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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sister of deceased Rajegowda has not been disputed by the prosecution by subjecting the said witnesses to cross examination. Admittedly, the chopper said to have been seized in this case is only one in number which is

MO-12. If that were to be the case, i.e., the said chopper is said to have been found in the place of the alleged offence, it cannot be understood as to how the police did not seize it from the spot under Ex.P2, but has shown it as a recovery made at the instance of accused

No.2 from his house at a subsequent date. As such, the alleged recovery of the chopper at the instance of accused No.2 also does not inspire any confidence to believe the same.

Apart from the above incriminating articles which are said to have been recovered at the instance of the accused, it is also the case of the prosecution that some Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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clothes in the form of pants and shirt were also seized at the instance of the accused. However, none of the witnesses, except the Investigating Officer, has stated as to what those clothes are and how they are related to the crime in question. Though, it is the case of the prosecution that the accused had worn those clothes at the time of commission of crime but that is only an inference drawn by the Investigating Officer, but there is no cogent evidence to believe the same which can be found in the evidence of other independent witness.

More particularly, the clothes said to have been worn by accused No.1 at the time of commission of crime is shown to have been produced by accused No.5.

According to PW16, when he had been to the house of accused No.5, he noticed blood stained clothes. But, according to prosecution when the clothes produced by accused No.5 were not blood stained, it is the evidence Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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of Investigating Officer that while producing the clothes accused No.5 stated that he had washed and kept them in the house. However, there is no corroborative evidence to believe the said version of the Investigating

Officer, as such, even if it is taken that some clothes were recovered by the Investigating Officer during the course of investigation, but there are no evidence to believe that the accused were wearing those clothes at the time of commission of the crime. Even the forensic science laboratory report at Ex.P43 would also shown that the dress material at item Nos.11, 12, 14, 15, 16,

17, 19 and 20, were found not stained with blood, as such, mere production of some clothes, although by the accused, by itself cannot be treated that those clothes were worn by them at the time of commission of the crime and that accused themselves were culprits in the alleged commission of crime. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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70. The other important material evidence which the prosecution has relied upon in its support is the evidence of PW10 and the recovery of the Maruthi Van which is said to have been used by the accused in the commission of crime.

71. According to the prosecution, on the date of alleged incident, in the night, PW-10 Mahesha was sleeping near the barrel where the tobacco was to be processed. Further, since he got up in the night to attend nature’s call, he could notice some disturbance in the hut of Rajegowda and was also able to see the shifting of three bodies from the house of Rajegowda.

PW-10 also has begun his deposition by stating that on the night of alleged incident i.e., on 19.10.2006, he was sleeping near the tobacco processing barrel which was there in the cattle shed. The said opening statement of Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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this witness that he sleeps in that place was proved to be an improvement, since PW-33, the Investigating

Officer, in his cross-examination has stated that PW-10 had not stated about he sleeping near the barrel at that time. Since even according to the prosecution, it is because PW-10 was sleeping near the barrel and as such, when he got up in the midnight to attend to nature’s call, he could observe the disturbance. In view of the fact that the said evidence of PW-10 that he was sleeping near that barrel on that night itself being an improvement made by him in his evidence, the basic aspect of his presence in that place on that night gives rise to some suspicion.

72. It is his further statement that three persons were lifted from the hut of Rajegowda and they were put in a red colour Maruti Van which was standing outside their hut. Though this witness claims to have seen the Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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registration number of the said vehicle, but he has not stated as to how many persons were there in that hut or as to how many persons were involved in the alleged shifting of three persons from the hut of said

Rajegowda. Prosecution also has not elicited any details as to how many persons were found shifting the body.

It was very important and necessary for the prosecution to have elicited from this witness who alone claims to have seen shifting of the persons, about the number of accused involved in the said activity of shifting of three persons. This further strengthens the suspicion in this case. When according to PW-10, he could notice the registration number of the car, written in small letters, why could he not count the total number of persons said to have been involved in the alleged act.

73. Thirdly, even according to him, after the incident on 19.10.2006, he was taken to the police Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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station only on 25.10.2006, where he is stated to have given his statement to the police. PW-33 also has stated that it was on 25.10.2006, the statement of PW-

10 was recorded, which means, about six days from

19.10.2006 up to 25.10.2006, he did not disclose about the incident to anybody nor about the registration number of the alleged van said to have been involved in the commission of crime. It is also not known as to how for the said six days, PW-10 was remembering the registration number of the said vehicle which undisputedly was an unknown vehicle to him. It is nobody’s case that he had written the registration number of the vehicle somewhere so that, he could refer to the same and make his statement. Therefore, his alleged disclosure of the registration number of a vehicle after six days of the incident, but, not speaking anything about the total number of persons said to have been Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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involved in the alleged act of shifting of the persons to the van, raises a suspicion in this case.

74. PW-10 has also stated in his evidence that after seeing the said incident of shifting of the persons, he was under great apprehension and fear, as such, he returned to his barrel house and slept till 5.00 a.m in the morning and in the early hours, he went straight to

Siddagange in a vehicle and returned only on

24.10.2006. Firstly, what made him scared and to fear on seeing some persons shifting three persons in a

Maruti Van what is not stated. It is not even his case that at the time when he saw the alleged shifting of three persons in Maruti Van, he inferred that they were three dead bodies, but, there was no reason for him to think of or to suspect any foul play or any criminal act at that moment. Still, why and how he felt scared is not forthcoming. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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Secondly, he claims that after seeing the shifting of bodies to the Van, he returned and slept near the barrel house. If he was really shocked by witnessing such an incident, would he get sleep thereafter? As such, his say that he slept again after seeing the incident appears to be against normal human behaviour or conduct of a human being.

75. According to him, in the early morning, he left for Sinddagnage to meet his friends there. When he claims that he was shocked due to the incident and that he could not disclose to his family members or to other villagers or even before the police, the next morning, then what made him to proceed to Siddagange, where his friends are stated to be Auto drivers, is not known.

76. Further, while stating that he had been to

Siddagange, where he claims to have stayed for four Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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days, he claims to have taken his food at Siddaganga

Math. Siddagange and Siddaganga Math are two different places. Siddagange is a hillock, with a small temple on it, where neither any Pontiff or Seer is there nor any Math. On the other hand, Siddaganga Math is on the outskirts of Tumkuru, a District Head Quarter, where there is a well known Math, headed by its

Seer/Pontiff. These two places i.e., Siddagange and

Siddaganga Math, are two different places at a considerable distance. Thus, staying at Siddagange, having his meals at Siddaganga Math, is quite uncommon and difficult to believe. Thus, the conduct of

PW-10 is not a natural conduct. As such, his statements are not reliable to believe the same.

77. In the case of Sonia Bahera –vs- State of

Orissa {(1983) 2 SCC 327}, the Hon’ble Supreme

Court while dealing with the case under Section 302 of Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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Indian Penal Code, has observed that the evidence of so called eye witnesses i.e., PW-1 and PW-2 in that case, whose conduct of not telling anybody about the incident on the date of the incident, was evidence not worthy of acceptance.

78. It is also the evidence of PW-10 that on

25.10.2006, he was taken to Arkalgud Police Station, where the accused were made to sit. He also noticed a red colour Maruti Van parked in front of the police station. At that time the police asked him to identify the accused and the Van. He stated that, it was the same

Van and the people. The said statement of the witness that he stated the `same Van and the people’ would not lead to an inference that the very same van was indeed the Van that was used for carrying the persons (dead bodies) and very same people who had committed the Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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alleged act were the accused herein. Very vital words in establishing the nexus between the alleged crime and the accused, as also the Van, witness has omitted the same cannot be supplemented by the Court. Even after assuming for a moment that the witness meant that they were the culprits, but, as observed above, except stating that he saw shifting of three persons in Maruti

Van, the witness has no where whispered as to who were those persons who shifted the other three or about their identity or resemblance or at least, as to how many were there at that time. In the absence of any specification of any of these aspects, how could he identify all the five persons in the police station stating that they were indeed the people(accused) is unbelievable.

79. Even according to the prosecution, accused

No.5 Manjula was not present at the time when the Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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alleged triple murder is said to have taken place in the house of Rajegowda and when the bodies of the deceased were said to have been shifted from there. In that situation, how could PW-10 identify all the alleged culprits, in the police station including accused No.5, as the one who were present in the hut of Rajegowda at the time of alleged commission of the crime, is a question which has remained unanswered. Thus, the conduct of PW-10 has shown that it is highly unsafe to believe his evidence. Therefore, the argument of learned HCGP that the evidence of PW-10 shows that the deceased were last seen together in the company of accused in their hut, has no basis. Thus, the only evidence of PW-10, upon which the prosecution has relied upon in establishing the nexus between the incident of murder with the vehicle and also the alleged place of murder, has proved to be unsafe to believe. Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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80. Regarding the alleged kidnapping of

Rangaswamy, a boy of two years old, said to be the son of deceased Rajegowda and Tulasi is concerned, there is no eye witness even with regard to the kidnapping of the said boy. PW-10 who claims to have seen the shifting of three persons in the Maruti Van on the alleged night of 19.10.2006, has no where whispered that the persons who carried three persons in the van, also took along with them the said child. According to the prosecution, after committing the alleged murder of three persons in the hut of Rajegowda, the accused shifted their bodies from the hut. At that time, they also took the son of Rajegowda i.e., Rangaswamy, a boy of two years old, with them. It is its further case that after throwing the dead bodies at different places at Charmadi

Ghat, they proceeded further and left the boy on the banks of the Netravati river near Dharmasthala. No Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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doubt the evidence of PW-1 and PW-4, show that the said child was brought from Dharmasthala and evidence of PW-9 shows that a panchanama was drawn as per

Ex.P-16 with respect to the alleged place where the said boy was said to have been abandoned and also the evidence of PW-12 shows that some pilgrims brought that boy from the banks of river Netravati to their

Information Centre at Dharmastala and left him there, but, none of the evidence of these witnesses establishes that the said boy was kidnapped by none else than the accused. In view of the fact that the said boy being a small child of two years old, who was a resident of

Mudaganuru, by himself could not come to

Dharmasthala, but, he was found at Dharmasthala, it can only be inferred that the boy might have been kidnapped, but, there is no evidence to believe that the Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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said boy was kidnapped by none other than these accused.

81. It is the case of the prosecution that accused

No.5, after finding that the Court had ordered for partition in their family and that she would not get the entire property of her husband Rajegowda, decided to eliminate them, thus, discussed with her brother i.e., accused No.1, who, in turn, taking the help of accused

Nos.2, 3 and 4, committed the murder of the deceased.

No doubt, the evidence of PW-1, brother of deceased

Tulasi, PW-3 and PW-6, sisters of deceased Rajegowda, though shows that accused No.5 was quarrelling with her husband and also not taking care of her mother-in- law properly, as such, a panchayath was held, where it was decided that Rejegowda and accused No.5 should give three bags of Ragi and a sum of `500/- to deceased Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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Nanjamma, but, that itself cannot be considered as a motive behind the crime. Admittedly, the said panchayath was with respect to giving maintenance to deceased Nanjammma, but, the panchayath was not with respect to sharing of property with deceased

Nanjamma. Further, the alleged beneficiaries in the partition suit was not deceased Tulasi. That being the case, had really the accused No.5 had any grudge with respect to the alleged order for partition of the property among the mother and sisters of her husband

Rajegowda, then, deceased Tulasi would not have been her target. Thus, the alleged motive being the basis for the commission of crime, as canvassed by the prosecution through PW-1, PW-3 and PW-6, is also not acceptable.

Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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82. Despite the prosecution stumbling at every stage, starting from its failure of proving the alleged place of commission of murder, alleged recoveries, identity of the accused, still, the Sessions Court without properly appreciating the cross-examination part of material witnesses, had confined itself in embracing the statement of those material witnesses as in their examination-in-chief. It has also failed to reconcile the evidence of these material witnesses inter se to find out whether the evidence of these witnesses are in consonance. It has also failed to notice the serious doubts that have crept in the case of the prosecution at every stage. This has led it to arrive at an erroneous conclusion so as to hold all the accused guilty of committing the alleged offences. Since the said finding of the Court below is now found to be erroneous and not based on the sound principle of appreciation of evidence, Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

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the same deserves to be set aside and by extending the benefit of doubt, the accused deserve to be acquitted in the matter, holding that the prosecution has utterly failed to prove the alleged charges leveled against the accused, beyond reasonable doubt.

83. Accordingly, we proceed to pass the following order:

ORDER

Criminal Appeal No.533/2012 and Criminal Appeal

No.1127/2012 are allowed. The judgment of conviction and order on sentence dated 19.3.2012, passed by the

Fast Track Court-II & Sessions Judge, Hassan, in

Sessions Case No.33/2007, is set aside. The accused

Nos.1 to 5 in the said Sessions Case No.33/2007, are acquitted of the offences punishable under Sections

120-B, 302, 363, 201 read with Section 34 of Indian Crl.A.No.533/2012 C/w.Crl.A.Nos.1090/2012 & 1127/2012

134

Penal Code. The accused, if are in judicial custody, be released forthwith, provided they are not required to be retained in judicial custody in any other matter.

Criminal Appeal No.1090/2012 is dismissed.

Sd/- JUDGE

Bk/GH