In the High Court of Karnataka at Bengaluru Dated This the 18Th Day of July 2018 Present the Hon'ble Mr. Justice Budihal R.B

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18 TH DAY OF JULY 2018

PRESENT

THE HON’BLE MR. JUSTICE BUDIHAL R.B.

AND

THE HON'BLE MR. JUSTICE B.A.PATIL

CRIMINAL APPEAL NO.538/2014 C/W CRIMINAL APPEAL NO.1322/2018

IN CRIMINAL APPEAL NO.538/2014

BETWEEN :

1. KRISHNA @ DANDUPALYA KRISHNA S/O SEETHAPPA AGED ABOUT 45 YEARS R/AT NO.DANDUPALYA VILLAGE HOSKOTE TALUK BANGALORE RURAL DISTRICT

2. THIMMA S/O VENKATESH AGED ABOUT 20 YEARS R/OF KURUBARAHALLI VILLAGE KOLAR TALUK, KOLAR DISTRICT …APPELLANTS

(BY SRI HASHMATH PASHA, ADVOCATE)

AND:

STATE OF KARNATAKA BY BANASWADI POLICE STATION BENGALURU

(REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) ...RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 29.7.2005 PASSED BY THE 34 TH ADDL. CITY CIVIL AND S.J., SPL. COURT, CENTRAL PRISON PREMISES, BANGALORE IN S.C.NO.361/2000 – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 READ WITH 149 OF IPC.

IN CRIMINAL APPEAL NO.1322/2018

BETWEEN :

1. HANUMA @ DODDAHANUMA S/O VENKATESH, AGED ABOUT 38 YEARS R/O DANDUPALYA VILLAGE HOSAKOTE TALUK, BENGALURU – 562 114

2. MUNIKRISHNA S/O MUNIYAPPA AGED ABOUT 22 YEARS R/O GUNJURPALYA BENGALURU – 560 087

3. VENKATARAMANA S/O VENKATESHAPPA AGED ABOUT 25 YEARS R/O KURUBARAHALLI KOLAR – 517 247 …APPELLANTS

(BY SRI HASHMATH PASHA, ADV.)

AND:

STATE OF KARNATAKA BY BANASWADI POLICE STATION

BANGALORE – 560 043

(REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) ...RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 29.07.2005 AND SENTENCE DATED 30.07.2005 PASSED BY THE XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND PRESIDING OFFICER, SPECIAL COURT, CENTRAL PRISON PREMISES, BENGALURU IN S.C.NO.361/2000 – CONVICTING THE APPELLANTS/ACCUSED NO.3 TO 5 FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 READ WITH 149 OF IPC.

THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, B.A.PATIL , J., DELIVERED THE FOLLOWING:

JUDGMENT

Crl.A.No.538/2014 has been preferred by accused Nos.1 and 6 and Crl.A.No.1322/2018 has been preferred by accused Nos.3 to 5, being aggrieved by the Judgment of

Conviction and Order of Sentence passed by the 34 th Addl.

City Civil and Sessions Judge and Presiding Officer, Special

Judge, Central Prison Premises in S.C.No.361/2000 dated

29.7.2005/30.7.2005.

2. Brief facts of the case of the prosecution are that on

19.5.1999 at house No.442, HBR layout, Kalyananagar,

Bangalore, a male aged about 20 years was killed by some unknown persons when he was alone in the house and had taken away valuable ornaments from almirah. In the evening parents came to the house and noticed that deceased was lying in a pool of blood and the same was reported to the police as per Ex.P1. On the basis of the complaint, case was registered in Crime No.353/1999 under Sections 454, 392 and 302 of IPC and after investigation, chargesheet was laid against the accused persons. Thereafter, the case was committed to the Sessions Court.

3. The Sessions Court took cognizance and after hearing the learned counsel for the accused and the learned Public

Prosecutor the charge was read over and explained to the accused. The accused pleaded not guilty and as they claimed to be tried, the trial was fixed. In order to prove the case of the prosecution, the prosecution got examined 13 witnesses and got marked 29 documents with sub-markings and also material objects 1 to 24. Thereafter, statement of the accused came to be recorded under Section 313 of Cr.P.C. by putting

incriminating material as against the accused. Thereafter, the accused led the evidence of D.Ws.1 to 9 and during the course of cross-examination of P.W.4, they also got marked

Ex.D1. After hearing the learned counsel for the parties, the impugned judgment of conviction and sentence came to be passed. Assailing the same, accused Nos.1 to 6 have preferred Crl.A.No.538/2014 and accused Nos.3 to 5 have preferred Crl.A.No.1322/2018.

4. We have heard the learned counsel for the appellants-accused and also the learned Additional State

Public Prosecutor for the respondent-State.

5. It is the contention of the learned counsel for the appellants-accused that there are no eyewitnesses to the alleged incident. The entire case rests on the circumstantial evidence. Even the prosecution has mainly relied upon the recovery of the articles at the instance of the accused. He further submitted that though the prosecution has relied upon the recovery, the recovery has not been proved in accordance with law. He further submitted that the

investigating officer who came to be examined as P.W.11 has not specifically deposed the words which have been used to by the accused while recording the voluntary statement and before the Court the same words have not been specifically stated. Under such circumstances, the evidence of P.W.11 in so far as recovery is concerned is not acceptable. He further submitted that P.W.7 is the panch witness to the recovery mahazars Exs.P7 to P10 and he is not a worth believable witness, since during the course of cross-examination he himself has admitted the fact that he has signed more than

25-30 mahazars. He further submitted that when the accused persons were retained in custody beyond the period which is statutorily prescribed and their voluntary statements have been recorded and at the instance of the accused the recovery proceedings have taken place, the same is not sustainable in law. P.Ws.1 and 2 have not specifically stated the seized articles belong to them and even no evidence either direct or indirect has been produced in this behalf to show that the said articles belong to them. In the absence of said material, the recovery which has been made by the police is

also not sustainable in law. In so far as accused No.6 is concerned it is submitted that as on the date of alleged incident he was a juvenile and the benefit of juvenile should have been given to him. Not giving the benefit to accused

No.6 also vitiates the entire proceedings. He has further submitted that there is no worth believable evidence to convict the accused. The Court below has wrongly convicted the accused and passed the impugned order. The same is liable to be set aside. He further submitted that even if the recovery is proved, if there is no evidence to show that the robbery and murder form part of the same transaction, under such circumstances, no presumption can be drawn that the accused committed the murder. In this behalf he also relied upon the decision of the Hon’ble Apex Court in the case of

Raj Kumar alias Raju Vs. State (NCT of Delhi) reported in

AIR 2017 SC 614 and another decision in the case of State of Rajasthan Vs. Talevar and another reported in

(2011)11 SCC 666 . He further submitted that though the chance finger prints were obtained at the place of incident the same has been suppressed and has not been produced before

the Court though they have been referred to the FSL. The withholding of the report of the chance finger print itself creates doubt in the case of the prosecution. On these grounds he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.

6. Per-contra, learned Additional Public Prosecutor vehemently submitted that P.Ws.6 and 7 are the recovery mahazar panchas to Exs.P7 to P10. They have categorically supported the case of the prosecution. Even P.W.11, the

Police Inspector has recorded the voluntary statements of the accused and thereafter, at the instance of the accused, recovery has been made from the shop of P.W.6 and 12. He further submitted that there is no illegality or irregularity in the judgment and order passed by the Court below. He also submitted that the accused persons have been involved in many more cases and they have been obtained from the custody in other cases and within the stipulated period of 15 days the knife and gold articles have been recovered at the instance of the accused. He substantiating the above aspect

further submitted that the recovered articles have been identified by P.W.1 complainant and his wife P.W.2. Though the learned counsel for the appellants-accused submitted that the investigating officer has only got marked the voluntary statements, but has not verbatim stated the wordings stated by the accused in their deposition, but the punch witness for recovery. P.W.7 has fully supported the case of the prosecution and at the instance of the accused the recoveries have been made. Under such circumstances, only because the investigating officer has not deposed verbatim the voluntary statements of the accused, it cannot be discarded and cannot be held that there is no recovery at the instance of the accused. He further submitted that the accused persons have been involved in many more cases and as such, P.W.7 in his evidence has deposed that he has signed 25-30 mahazars, pertaining to the same accused persons. He further submitted that the said mahazars are pertaining to the same case and he is not a stock or stored witness. In that light, he submitted that the trial Court after considering all the materials placed on record has rightly come to the conclusion

that the accused have committed the alleged offence and has rightly convicted the accused-appellants. There are no good grounds to interfere with the order of the trial Court. The same may be confirmed by dismissing the appeals.

7. We have heard the arguments of the learned counsel for the appellants-accused and the learned Additional

Special Public Prosecutor in respect of both the appeals. We have also gone through the evidence led in this behalf and also the documents produced along with the said case.

8. Before going to discuss the contention of the learned counsel for the accused/appellants, we want to place on record the fact that the entire case rests on circumstantial evidence. When case rests on circumstantial evidence, the principle that the prosecution must establish all the circumstances relied upon by it to show the links that they point-out the guilt of the accused and there is no circumstance which is reasonably considered that it is consistent with the innocence of the accused. The court must also see entire material and see that what is the important

fact emerging out of such material in missing the link in the chain of circumstances is vitally proved by the prosecution.

This preposition of law has been laid down by the Hon’ble

Apex Court in the case of Umedabhai Jadavbhai vs. The State of Gujarat reported in AIR 1978 SC 424 which reads as under:-

“7. It is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case”.

It has been observed that prosecution has to establish that circumstances proved lead to one and only conclusion towards guilt of accused. Evidence must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused. This preposition of law has been laid down in yet another decision of the Hon’ble Apex Court in the

case of Rukia Begum vs. State of Karnataka reported in AIR

2011, SC 1585 held as follows:-

“10. No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt. In our opinion, the trial court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned.”

9. Keeping in view the above said preposition of law of the Hon’ble Apex Court, let us consider the evidence on records.

10. It is the first contention of the learned counsel for the accused-appellants that the entire case rests on the circumstantial evidence. The only circumstance on which the prosecution has relied upon is that of recovery and even the recovery has also not been proved in accordance with law.

11. It is submitted by the learned counsel for the accused-appellants that mere marking of the voluntary statement as exhibit in the evidence of Investigating Officer will not amount to proof of substantive evidence. It must be proved like any other facts, so much of the information which leads to recovery of incriminating material must be stated in his evidence and that will be the correct approach. In the case on hand, though prosecution examined PW-11 but he has not deposed in the words of accused verbatim, but only got marked it as exhibit. In order to substantiate the said fact he took us into the evidence of PW-11 and brought to our

notice voluntary statement of accused No.1, Ex.P21 where under MO-23 knife was recovered by drawing mahazar Ex.P8.

He draw our attention to voluntary statement of accused

No.2, Ex.P18 where under he led near school produced Iron rod-MO-24 which was seized by drawing mahazar Ex.P.9. He took us to voluntary statement of accused No.3 and accused

No.4 Ex.P19 and Ex.P20 place of commission, mahazar was drawn as per Ex.P11, at the instance of accused No.4 six gold articles seized MO-1, under Ex.P6, accused No.3 led to shop of Gnanchand recovered MO2, MO.4 to 6 by drawing mahazar

Ex.P7. In order to support his case, he relied upon the decision of this court in the case of Vijaykumar vs. State reported in I.L.R. 1994 KAR 491. He also further relied upon one more decision reported in 1996 Criminal Law Journal,

Page 317 in the case of M. Abbas, Dakshina Kannada,

Appellant vs. The State of Karnataka, Dakshina Kannada,

Respondent and he also relied upon one more decision of the privy council reported in A.I.R (34) 1947 Privy Council Page 67 in the case of Pulukuri Kottaya and others – Appellants v.

Emperor.

12. Before going to discuss the point in controversy, we feel it just and proper to place it on record that the preposition of law in respect of the recording of voluntary statement of the accused and how the same has to be proved in accordance with law by the prosecution has been discussed in detail, in the case of Anter Singh vs. State of

Rajasthan reported in AIR 2004 SC 2865 it has been observed at para No.14 which reads as under:-

“14. The expression “provided that” together with the phrase “whether it amounts to a confession or not” show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this Section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, indubitably”, “strictly”, “unmistakable”. The word has been advisedly used to limit and define the scope of the provable information. The phrase

“distinctly” relates “to the fact thereby discovered” and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (See Mohammed Inayuttillah v. The State of Maharashtra (AIR 1976 SC 483).”

13. In order to bring the voluntary statement on record, requirements which are required are that the discovery of the fact albeit a relevant fact in the consequence of information received from a person accused of an offence.

Secondly, the discovery of such fact must be deposed by the

Investigation Officer. Thirdly, at the time of receipt of the information the accused must be in police custody and lastly, so much of the information as relates distinctly to the facts through discover is admissible.

14. Keeping in view the said principles of law, we perused evidence of PW-11 the Investigation Officer. In his

evidence he has deposed that he received the credible information on 29.10.1999 that some criminals are trying to commit robbery, they are in and around Banaswadi Railway

Station and thereafter, himself and his staff went to

Banaswadi Railway Station and in Banaswadi Railway Station he apprehended the accused Hanuma @ Dodda Hanuma,

Munikrishna, Venkatappa @ Batludu and thereafter, he recorded the voluntary statement of accused Nos.1 to 4. In his evidence, relevant portion of the voluntary statement of the concerned has been got marked as Exs.P-21, 22, 18 to

20. Insofar as the accused No.6, his voluntary statement has been recorded as per Ex.P-25 and thereafter, that the recovery proceedings were held in the presence of PW-7. It is well settled principles of law that under Section 27 of the

Evidence Act (hereinafter in short “Act”) so much of such information that distinctly relates to the discovery of fact alone is admissible in evidence and that the so much information which leads to recovery has to be got marked. So in the instant case on hand that the portion of the voluntary statement which has been got marked as Ex. P-18 to 22 and

25 are not verbatim stated by the Investigation Officer in his deposition.

15. If Investigating Officer does not depose verbatim as to what is its legal consequences has been discussed in the case of Vijayakumar quoted supra wherein, at paragraph

No.6 it has been observed as under:-

“6. Our attention was drawn by the Counsel for the appellant to the manner of recording evidence by the Sessions Court, particularly with regard to most material circumstance of the accused giving information under Section 27 of the Evidence Act leading to the discovery of fact. Our attention was particularly drawn to that part of the testimony recorded by the Trial Court which shows that practically no evidence was given in this behalf by the Investigating Officer. The learned Judge has recorded the evidence as follows:— “The accused was present in the police station as produced by P.C. 3286 & 2004. I recorded the voluntary statement of the accused, as per Ex. P. 17. I arrested the accused and then seized the blood stained shirt and subjected it to P.F. No. 71/91 and under Mahazar Ex. P-3.” It was rightly urged on behalf of the appellant that taken by itself, Ex. P. 17 cannot go in substantive evidence as Ex. P. 17 would provide corroboration to the substantive evidence that should be given in Court by the witness speaking about this information. The Trial Court ought to have insisted on the prosecution to lead substantive evidence in this behalf before making

use of Ex. P. 17. Thus practically the Investigating Officer P.W. 22 did not state anything regarding the information said to have been given to him by the accused. Section 27 says that so much of the information that distinctly leads to the discovery of a fact alone is admissible in evidence and it is exception to Sections 25 & 26 of the Evidence Act. Therefore so much of the information as leads to discovery of a fact must be proved like any other fact and recording in the deposition or the prosecution leading evidence of an Investigating Officer that he recorded a particular statement as per certain record made by him and exhibited cannot take place of substantive evidence. Similarly we have come across certain contradictions being recorded only by referring to exhibits without reproducing exactly what is the contradiction or omission stated by a particular witness or Investigating Officer. Likewise, unless facts incorporated in the mahazar are spoken to by a particular witness in order to marking of a mahazar it does not amount to substantive evidence. It is unfortunate that many of the Sessions Judges have not understood this distinction and it has become a practice to take down depositions in the manner stated above thus unnecessarily creating complications in the matter of acceptance or rejection of the evidence so given. It may also sometimes happen that even if a witness states what exactly was recorded in his own words, the Sessions Judges may find it a short cut to take down only as stated as per certain exhibits without taking down what exactly was the information given by the accused which could fall under Section 27 of the Evidence Act. Such a practice is wholly deprecable as even evidence given by witnesses according to law might sometimes not be reduced to writing while taking depositions only as a matter of convenience. We impress upon Courts below that such a practice of not taking down in the evidence of material witnesses what they actually deposed to in

such situations would come in the way of proper appreciation of evidence and even good cases may be seriously affected by such casual and perfunctory recording. Such practice should be discontinued. With these observations, we find that practically there was no evidence for the Trial Court to find accused guilty. Appeal has to be allowed and it is allowed. Judgment of conviction and sentence imposed by the Trial Court are set aside and the accused is acquitted of the charge under Section 302 IPC. He shall be set at liberty forthwith. A copy of this Judgment shall be forwarded to the learned Trial Judge wherever he is.”

This court by relying on the above said decision in the case of

M. Abbas, Dakshina Kannada, quoted supra at para No.7, it has been observed as under:-

“7. The next piece of evidence relied upon by the prosecution is the recovery of certain incriminating articles, blood stained clothes and weapons in pursuance of the voluntary statements alleged to have been made by the three appellants. It is the case of the prosecution that accused Nos.1 and 2 were arrested on 8-1-92 and they made voluntary statements as per Exs. P-29 and P-30. It is also the case of the prosecution that the accused No.3 was arrested on 5-3-92 at Bombay and he gave his voluntary statement as per Ex. P-45 before the police. The trial Court has held in para 39 of its judgement that the said voluntary information is admissible in evidence under Section 27 of the Indian Evidence Act. P.W.31 has stated that after he arranged A-1 and A-2 in this case they volunteered the information regarding the

properties involved in the case. His specific evidence is as follows :-

“A-1 volunteered the information marked at Ex.P-29.”

He has further stated as follows :-

“A2 volunteered the information as per Ex. P- 30.”

But, this Court in the ruling reported in ILR 1994 KAR 491 (Vijayakumar v. State) has held as follows:-

“Section 27 says that so much of the information that distinctly leads to the discovery of a fact alone is admissible in evidence and it is exception to Secs. 25 and 26 of the Evidence Act. Therefore, so much of the information as leads to discovery of a fact must be proved like any other fact and recording in the deposition or the prosecution leading evidence of an Investigating Officer that he recorded a particular statement as per certain record made by him and exhibited cannot take place of substantive evidence.”

This Court has further held as follows :-

“It may also sometimes happen that even if a witness states what exactly was recorded in his own words, the Sessions Judges may find it a short cut to take down only as stated as per certain exhibits without taking down what exactly was the information given by the accused which would fall under Section 27 of the Evidence Act. Such a practice is wholly depreciable as even evidence given by witnesses according to law might sometimes not be reduced to writing while taking

depositions only as a matter of convenience. We impress upon Courts below that such a practice of not taking down in the evidence of material witnesses what they actually deposed to in such situations would come in the way of proper appreciation of evidence and even good cases may be seriously affected by such casual and perfunctory recording. Such practice should be discontinued. With these observations, we find that practically there was no evidence for the Trial Court to find accused guilty.”

In this case also we are constrained to observe that the recording of the evidence regarding the voluntary statements by P.Ws 31 and 36 is not proper. P.W.36 who states about the voluntary statement of accused No.3 has stated as follows :-

“I arrested A-3 at 8 a.m. on 6-3-1992 and interrogated him. A-3 volunteered the information regarding the involved properties in this case. I reduced the same to writing as per Ex. P-45.”

The alleged statement of the accused persons have been marked as per Exs. P-29, P-30 and P-45. But, they cannot be taken as substantive evidence as the concerned Investigating Officers have not stated as to what were the informations given by the accused. Therefore, the alleged voluntary statements of the accused persons recorded as per Exs. P-29, P-30 and P-45 cannot be substantive evidence in this case.”

16. In the above said decisions it has been observed that in the Act if a recovery has been made at the instance of the accused and at the most recovery of his properties may

lead to inference that the accused has knowledge that these properties may be stored in a particular place that may be a strong suspicion against the accused. But no accused can be convicted merely on a suspicion and the accused are entitled to the benefit of doubt in view of the reluctance in the prosecution case. So this aspect has not been properly considered and appreciated by the trial court.

17. In another decision reported in Pulukuri Kottaya at para No.10 that it has been observed that the police officer must depose to, and thereupon so much of the information as relates to distinctly to the fact thereby recovered may be proved. The said observation has been made at para No.10 which reads as under:-

“[10] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer 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 must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the “fact discovered” is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S. 26, added by S. 27, should not be held to nullify the substance of the section. In their Lordships’ view it is fallacious to treat the “fact

discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

So also in the case of Vijay Kumar at para No.6 as stated supra.

18. By going through the above said preposition of law and the evidence so which has been led in this behalf that the recovery which has been said to have been done on the basis of voluntary statement said to have been recorded by PW-11 and is not in accordance with law. No doubt, we are conscious of the fact that the evidence of the Investigation

Officer under Section 27 of Act with regard to the recovery could be proved and even by solitary evidence of the

Investigation Officer if it is worth believable, then on such circumstances the court below can brought an inference and convict the accused. But in the instant case on hand that the voluntary statement has been only got marked without there being any verbatim statement given by the Investigation

Officer. Even as could be seen from the evidence of PW-7 who accompanied the Investigation Officer at the time of recovery, in his evidence during the course of cross examination he has deposed that he has signed about 20-25 Mahazars of

Banaswvadi Police Station. Even as could be seen from evidence of PW-7 he has deposed that he is doing a flower vending business opposite to police station for the last 10 years and he is supplying flowers and garlands to Banaswadi

Police Station daily and collecting price of the same at the end of every month, then under such circumstances the evidence itself clearly goes to show that he is a stock witness and the said evidence is also not going to comply the provisions of

Section 100 (4) of Criminal Procedure Code. Even as could be

seen from the material on record though at the instance of accused No.3 the articles said to have been recovered but the receiver of the said articles has not been examined for the reasons best known to the prosecution. Even as could be seen from the records that there is no positive material produced before the court to show that MOs 7 to 9 were missing articles and the same were recovered at the instance of the accused. Even as could be seen from the evidence of

PW-11 no recovery has been made at the instance of accused

No.5 and there is no connecting link to the alleged crime is concerned. Insofar as accused No.4 is concerned, though

MO-1 gold chain was recovered under Exhibit P-6 but the pancha PW-7 he is not a worth believable witness. Even though the prosecution has also got examined PW-6 the owner of jewelry shop and PW12 Mukesh but they have also not specifically identified and stated at what date and time that the accused persons came to their shop and handed over the said articles and in this behalf also the recovery which is said to have been made from the shop of PW-6 and 12 is also not worth believable and acceptable. Even MO-10 and 11

were also not identified by the witnesses during the course of the evidence.

19. Even it is the contention of the learned counsel for the accused/appellants that though the recovery of knife has been made at the instance of accused No.1 but the same has not been proved that the said knife has been used for the purpose of commission of alleged offence. He also contended that no serology report has been produced though FSL report has been produced and marked as Ex. P-26. Even that there are no stains found on the said articles, which has been seized at the instance of the accused No.1. The learned counsel for the accused/appellants would contend that the only circumstances on which the prosecution has relied upon is the recovery and the recovery of the ornaments and other circumstances were not satisfactorily explained. It is his contention that without admitting the fact of recovery, prosecution has to prove that they took place in the same transaction. In that light if we peruse the evidence only there are circumstances to show that theft and robbery took place

in the same transaction, if that is the case then, the accused would not be liable for conviction under Section 302 of Indian

Penal Code. In order to substantiate his contention he relied upon the decision in the case of Raj Kumar v. State (NCT of

Delhi) d at para 10 & 11 it has been observed as under:-

“10. Learned counsel for the appellant would contend that the aforesaid circumstances do not conclusively point to the involvement of the accused appellant in the crime. The chain leading to the sole conclusion that it is the accused persons and nobody else who had committed the crime is not established by the three circumstances set forth above, even if all of such circumstances are assumed to be proved against the accused. Reliance has also been placed on the decision of this Court in the case of Sanwat Khan and Anr. vs. State of Rajasthan, wherein this Court had taken the view that recovery of ornaments of the deceased from the accused or production of the same by the accused in the course of investigation, howsoever suspicious, cannot be conclusive of the question of the accused having committed the offence. As per Illustration (a) to Section 114 of the Evidence Act, 1872 though recovery of the ornaments can lead to presumption that the accused had committed robbery or received stolen property, unless there are circumstances to show that the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offence under Section 302 IPC. 11. The facts in Sanwant Khan (supra) bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of P.W.12 is to

be discarded on the ground that such evidence is vague, (there is no mention of the date on which P.W.12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16.09.1991) the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12.09.1991 and that they were going away to some other place. Even if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused.”

20. By going through the above said principle therein, the Hon’ble Apex Court has specifically observed that if circumstances cannot lead to any conclusion consistent with the guilt of the accused, then at the said circumstances the benefit of doubt should be given to the accused. In that light the evidence so which has been produced by the prosecution is not worth believable and reliable and the same has not been properly considered and appreciated by the learned trial

court and by ignoring the same the trial court has erroneously passed the order of conviction and sentence and the same is liable to be set-aside.

21. At this juncture, we want to place it on record that the accused No.2 has expired and the case as against him has been abated. As such, we are not inclined to discuss any evidence in respect of accused No.2.

22. It is the contention of the learned counsel for the appellant that accused No.6 as on the date of alleged incident was juvenile. He has not been tried as juvenile offender under the said Act and benefit has also not been extended.

We have carefully gone through the records. This court by order dated 30.06.2015 directed Principal City Civil and

Sessions Judge, Bengaluru to find truth as to exact date of birth of accused No.6 and whether he was a juvenile as on the date of the offence is as on 22/23.04.98. In pursuance of the said order enquiring report dated 10.02.16 was submitted stating that accused No.6 is born on 16.08.82 or on 16.08.83 and was within the age of 16 years as on the date of alleged

offence. Further, this court while passing order on I.A.

No.1/14 dated 31.03.17 by relying on the report released him on bail. By such records the trial held as against accused

No.6 as if like any other criminals is not in accordance with law. Entire trial vitiates, but when we have come to the conclusion that there is no material to connect the accused person to the alleged crime then under such circumstances by holding that the entire trial vitiates and fresh trial has to be conducted as against accused No.6 is concerned will definitely prejudice his case and no useful purpose will be served in this behalf that too when he is also going to be acquitted.

23. We have gone through the judgment of the trial court. The trial court has not properly appreciated the factual matrix in its right perspective and by wrong appreciation has wrongly and illegally convicted the accused- appellants. In that light it deserves to be set-aside and accordingly set-aside.

24. Since the main appeal itself is disposed off, pending I.A. No.2/2014 and I.A. No.1/2017 in Crl. A.

538/2014 do not survive for consideration. Accordingly, they are disposed off.

Accordingly, the judgment and order of conviction dated

29.07.2005 and sentence dated 30.07.2005 passed by 34 th

Addl. City Civil & Sessions Judge, Special Court, Central

Prison Premises, Bangalore in S.C. No.361/2000 is set-aside.

The appellants/accused are acquitted of the charges leveled against them and they are set at liberty forthwith, if they are not required in any other case.

The Registrar General, High Court of Karnataka, is hereby directed to send the operative portion of the order to the concerned Prison Authorities immediately.

Sd/- JUDGE

Bkp/Chs*