R Rajesha Vs. State of Karnataka - Court Judgment

Excerpt:

.....accused. it is further contended that the said seized silver articles worth rs.2,000/- are commonly found in every house and that the family of the said accused consisted of seven members, including the accused. therefore, no inference of exclusive possession and recovery can be definitely attributed in respect of this accused to come to a conclusion that this accused also played a role with other accused in committing the murder of the deceased. it is further contended by the learned counsel that the statement of pw-17 sajjanlala jain relating to pledging mo-1 and mo-2 gold ornaments by accused no.1 accompanied by this accused, is not reliable and it does 13 not prove that this accused also colluded with the other accused in committing the alleged offences. however, the statement of pw-17 discloses that accused no.3 had endorsed his signature on the receipt to have received rs.56,000/- by pledging mo-1 and mo-2 gold ornaments. however, it is to be seen that it is accused no.1 who had received the money and accused no.3 was not the beneficiary out of signing the receipt. therefore, this accused cannot be connected to accused no.1 in any manner and it cannot be said that that.....

Judgment:

1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE23D DAY OF FEBRUARY, 2018 PRESENT THE HON’BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE K. SOMASHEKAR CRIMINAL APPEAL No.1260 of 2012 CONNECTED WITH CRIMINAL APPEAL No.893 OF2015CRIMINAL APPEAL No.1260 OF2012BETWEEN: R. RAJESHA S/O RAMESHA, AGED ABOUT21YEARS, R/O MISSION COMPOUND, BEHIND NANDARAJ BUILDING, DODDANNA NAGARA, KAVALU BYRASANDRA, R.T.NAGAR POST, BENGALURU CITY – 560 032. ... APPELLANT (BY SRI. HASHMATH PASHA, ADVOCATE) AND: STATE OF KARNATAKA BY TIPTUR TOWN POLICE STATION, TIPTUR – 572 201, 2 TUMAKURU DISTRICT. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) ... RESPONDENT (BY SRI. P.M. NAWAZ, SPP.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE

JUDGMENT

AND

ORDER

OF CONVICTIONS AND SENTENCE DATED1409.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, TIPTUR IN S.C.No.279 OF2011– CONVICTING THE APPELLANT- ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION392 394, 302 READ WITH34OF IPC. THE APPELLANT-ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR5YEARS AND TO PAY FINE OF RS. 10,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR FURTHER PERIOD OF3MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION392OF IPC. THE APPELLANT-ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR7YEARS AND TO PAY FINE OF RS. 20,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR FURTHER PERIOD OF6MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION394OF IPC. THE APPELLANT-ACCUSED IS SENTENCED TO UNDERGO LIFE IMPRISONMENT AND TO PAY FINE OF RS. 25,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR FURTHER PERIOD OF7MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION302OF IPC. ALL THE SENTENCES SHALL RUN CONCURRENTLY. THE APPELLANT-ACCUSED PRAYS THAT HE BE ACQUITTED. 3 CRIMINAL APPEAL No.893 OF2015BETWEEN: RAVEEN @ APPU, S/O SELVA, AGED ABOUT25YEARS, R/AT DODDANNANA NAGARA COLONY, KAVALABYRASANDRA, R.T.NAGARA POST, BENGALURU CITY – 560 037. ... APPELLANT (BY SRI. B. RAVINDRA, ADVOCATE) AND: STATE BY TIPTUR TOWN POLICE, REPRESENTED BY STATE BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001. (BY SRI. P.M. NAWAZ, SPP.) ... RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE

JUDGMENT

DATED1409.2012 PASSED BY THE FAST TRACK COURT, TIPTUR IN S.C.No.279 OF2011– CONVICTING THE APPELLANT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION392 394, 302 READ WITH34OF IPC. THE APPELLANT-ACCUSED NO.2 IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR5YEARS AND TO PAY FINE OF RS. 10,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR3MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION392OF IPC. FURTHER THE APPELLANT-ACCUSED NO.2 IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR7YEARS AND TO PAY4FINE OF RS. 20,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR6MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION394OF IPC. FURTHER THE APPELLANT-ACCUSED NO.2 IS SENTENCED TO UNDERGO LIFE IMPRISONMENT AND TO PAY FINE OF RS. 25,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR7MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION302OF IPC. ALL THE ABOVE SENTENCES SHALL RUN CONCURRENTLY. THE APPELLANT-ACCUSED THAT HE BE ACQUITTED. PRAYS THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT

ON0502.2018 COMING ON FOR PRONOUNCEMENT THIS DAY, K. SOMASHEKAR J.

DELIVERED THE FOLLOWING:

JUDGMENT

Since both the appeals arise out of the same judgment and common questions of facts and law arise for consideration in these appeals, both the appeals are heard together and disposed off by this common judgment.

2. The appeal in Crl.A.1260 of 2012 is preferred by the appellant – Accused No.3 Rajesh and the appeal in Crl.A.893 of 2015 is preferred by the appellant – Accused No.2 Raveen @ Appu, against the impugned judgment of conviction and sentence dated 14.09.2012 passed by the 5 Presiding Officer, Fast Track Court, Tiptur, in S.C.No.279 of 2011. By the said judgment, the court below has convicted both the accused for the offences punishable under Sections 392, 394 and 302 IPC and has sentenced them to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.10,000/- each for the offence punishable under Section 392 IPC, to undergo rigorous imprisonment for seven years and to pay a fine of Rs.20,000/- each for the offence punishable under Section 394 IPC and further to undergo life imprisonment and to pay a fine of Rs.25,000/- each for the offence punishable under Section 302 IPC, which sentences were to run concurrently.

3. The brief facts of the prosecution case are as follows: On 18.07.2011 at 11.00 p.m., in the house of PW-3 Nataraju which was taken on lease by Smt. Vijayamma situated at C.B. Compound, Tiptur within the jurisdiction of Town Police Station, Tiptur, Accused Nos. 1 to 3, with a common intention of robbing her, had entered her house. 6 It transpires that Vijayamma was standing in the kitchen. The three accused who had entered her house saw Vijayamma in the kitchen. Before she could shout for help, accused No.3 had at once closed her mouth with his hand, as a result of which Vijayamma fell down. The accused No.1 had tightly held both her hands and Accused No.2 had stabbed her neck using a sharp-edged knife, which had led to grievous hurt to her neck, as a result of which she fell dead. After she fell dead, the three accused snatched away the gold ornaments worn by her including some valuables, and left the place. On 19.07.2011 at about 11.00 a.m., Vijayamma’s relative one Sridhar had accidentally come to visit her. On finding Vijayamma dead in a pool of blood, he had immediately informed Vijayamma’s sister, who had at once come there along with her husband and son. Then, the said Ramarathnamma, sister of the deceased Vijayamma, had filed a complaint on the next day before the Tiptur police. In the said complaint, she had mentioned that on 18.07.2011, at about 4.00 p.m., she along with her sister 7 Vijayamma had gone out to attend Bhajans after which both of them had gone back to their respective houses. On 19.07.2011 at about 11.00 a.m., their relative Sridhar who had gone to visit Vijayamma on finding her dead, had informed the complainant, after which she had rushed to Vijayamma’s house. She has further stated in her complaint that Vijayamma was lying dead in the kitchen, and on seeing blood stained injuries on her neck, she found that her sister had been killed by someone. She also noticed that the almirah in the bedroom was wide open and the clothes and things were turned topsi-turvy. Further, the gold ornaments worn by Vijayamma such as gold chain, two gold bangles, ear studs and hangings were found missing from her person. In pursuance of the complaint filed by the complainant before the police, the crime came to be registered against unknown persons. It is only thereafter, after further investigation that the FIR came to be lodged against Accused Nos.1 to 3. Thereafter, the case was proceeded for investigation by the Investigating Officer who has investigated the case and 8 lodged a charge-sheet against the accused for the offences punishable under Sections, 392, 394 and 302 read with Section 34 of IPC.

4. The Trial Court had framed charges for the offences under Sections 392, 394, 302 read with Section 34 IPC, where the accused did not plead guilty but they claimed to be tried. Subsequently, to substantiate the case of the accused, the prosecution in all examined 21 witnesses as PW-1 to PW-21 and got marked Exhibits P-1 to P-47 and so also got marked MO-1 to MO-17. Subsequent to the closure of the evidence of the prosecution, the accused was examined as required under Section 313 Cr.P.C by explaining the incriminatory evidence against them. The accused had denied the truth of the prosecution witnesses adduced so far. Thereafter, the accused did not come forward to adduce the evidence as contemplated under law. Subsequently, the Trial Court having heard the arguments of the prosecution as well as the defence counsels and evaluating the entire evidence on 9 record, convicted the accused for the aforesaid offences charged against them. It is this judgment which is under challenge in this appeal urging various grounds.

5. Heard the learned counsel for the appellant in both the appeals and the learned State Public Prosecutor for the respondent.

6. The point that arises for consideration in this appeal is, “Whether the judgment of the Trial Court in S.C.No.279 of 2011 dated 14.09.2012 convicting the accused 2 & 3 under Sections 392, 394 and 302 IPC and sentencing them to rigorous imprisonment of five years for the offence under Section 392 IPC, rigorous imprisonment for seven years for the offence under Section 394 IPC and life imprisonment for the offence under Section 302 IPC apart from payment of fine, is justified?.” 7. Learned counsel for the accused No.3 - Rajesh has taken us through the evidence placed by the prosecution 10 and also the charges levelled against the accused. The Investigating Officer, during the course of investigation, has taken this accused into police custody on 28.10.2011, after the accused has surrendered before the concerned Court. On 1.11.2011, this accused has given voluntary statement as per Exhibit P-45. In pursuance of his voluntary statement, MO-4 Silver Deepam and MO-5 Silver kumkum bowl were seized by conducting seizure mahazar as per Exhibit P-8 in the presence of PW-2. However, PW- 2 has not withstood his versions of the seizure mahazar relating to the recovery of the said articles. Absolutely, no evidence has been placed by the prosecution in order to prove the guilt of this accused. Exhibit P-1 is the complaint which has been filed by the complainant before the police, whereby the law had been set into motion. As per the complaint, it has been stated that only gold ornaments worn by Vijayamma were missing but there is no mention about any silver articles gone missing from the house of the deceased. But however, MO-4 and MO-5 – silver articles were seized by the Investigating Officer at 11 the instance of the voluntary statement stated to be given by Accused No.3 as per Exhibit P-45. But those articles were not said to be missing from the house of the deceased. The said articles were said to have seized from the house of Accused No.3 in Kaval Byrasandra. The accused is a stranger to the deceased and none of the witnesses examined for the prosecution has spoken about this accused in any circumstances. But, his name has been included in the charge-sheet as Accused No.3. Therefore, this accused had surrendered before the Committal Court, wherein he was taken to custody after a lapse of 3 ½ months. The learned counsel submits that the first infirmity relates to the voluntary statement alleged to have been given by this accused, which is not proved as required under Section 27 of the Indian Evidence Act. However, Exhibit P-45 the voluntary statement has been got marked. Mere marking of the said voluntary statement does not amount to proof of the facts in that voluntary statement. Discovery of any fact must be deposed and the 12 contents of it must be proved by the prosecution in order to accept the same. In the case on hand, though the voluntary statement said to be given by Accused No.3 has been marked as Exhibit P-45, that information was not proved as required under Section 27 of the Indian Evidence Act. Therefore, if the very information is not proved by the prosecution, then the alleged recovery does not constitute incriminating evidence against the accused. It is further contended that the said seized silver articles worth Rs.2,000/- are commonly found in every house and that the family of the said accused consisted of seven members, including the accused. Therefore, no inference of exclusive possession and recovery can be definitely attributed in respect of this accused to come to a conclusion that this accused also played a role with other accused in committing the murder of the deceased. It is further contended by the learned counsel that the statement of PW-17 Sajjanlala Jain relating to pledging MO-1 and MO-2 gold ornaments by Accused No.1 accompanied by this accused, is not reliable and it does 13 not prove that this accused also colluded with the other accused in committing the alleged offences. However, the statement of PW-17 discloses that Accused No.3 had endorsed his signature on the receipt to have received Rs.56,000/- by pledging MO-1 and MO-2 gold ornaments. However, it is to be seen that it is Accused No.1 who had received the money and Accused No.3 was not the beneficiary out of signing the receipt. Therefore, this accused cannot be connected to Accused No.1 in any manner and it cannot be said that that this accused also participated with other accused in committing the alleged offences. Therefore, the evidence of PW-17 is doubted relating to MO-1 and MO-2, gold ornaments pledged by Accused Nos.1. Whereas the entire case is based upon circumstantial evidence and not even a single circumstance is proved against this accused beyond all reasonable doubt. So far as the recovery of articles MO-4 and MO-5 silver articles is concerned, this recovery will not complete the link in the chain of circumstances in order to prove the 14 guilt of the accused. The finding of guilt recorded by the Trial Court is based upon the voluntary statement at Exhibit P-45 and also the seizure mahazar conducted by the Investigating Officer, which is illegal and perverse. Hence, the learned counsel for the appellant – Accused No.3 in this appeal seeks to consider the grounds urged in this appeal and prays for setting aside the impugned judgment of conviction and sentence held against the accused, since the prosecution did not place cogent, corroborative and consistent evidence in order to accept that this accused also participated with accused No.1 in committing the murder of the deceased.

8. Whereas the learned counsel for the accused No.2 - appellant in Crl.A.893 of 2015, has taken various contentions in this appeal by urging various grounds and also taken us through the evidence which has been placed by the prosecution. The Trial Court has erred in convicting the accused for the offences which were also charged against him. Though the entire case is based upon circumstantial evidence, the prosecution has not proved 15 the charges against this accused no.2 beyond all reasonable doubt. Whereas it is only based upon suspicion. It is contended that even though according to the prosecution the deceased Vijayamma was alone staying in a leased house situated at C.B. Compound, Tiptur, but the prosecution case is that the lease agreement did not stand in the name of the deceased Vijayamma nor her relatives. The said document actually stood in the name of some other person who was not related to her or acquainted with her. The said fact raises a serious doubt in the theory put forth by the prosecution that this accused also had participated with accused No.1 in committing the murder and robbing the gold articles from Vijayamma. The Trial Court further erred in convicting the accused though the mobile conversation among the accused was not properly established by the prosecution. This accused did not own such kind of mobile nor had such conversation with the other accused who have been roped in the alleged crime and also charge-sheeted for the alleged offences. This fact was not properly established by the prosecution by placing 16 cogent evidence beyond all reasonable doubt. Despite it, the Trial Court has wrongly held that the mobile conversation has been proved by the prosecution and held conviction against this accused. Further, the so-called recovery made by the prosecution in respect of the case which is at the instance of this accused has also not been proved. On these grounds, the learned counsel emphatically addressed arguments contending that the Trial Court ought to have appreciated the evidence on record in a proper perspective since the prosecution has not proved the facts against the accused though the case rests upon circumstantial evidence. It is only on surmises and conjecture that the Trial Court has come to the conclusion that the prosecution has proved the guilt of the accused and held conviction. On all these grounds, the learned counsel seeks to allow the appeal by setting aside the impugned judgment of conviction and sentence. 17 9. Per contra, the learned State Public Prosecutor has taken us through the judgment of conviction and sentence held by the Trial Court in S.C.No.279 of 2011 including the evidence on record and so also the documents which were got marked in order to prove the guilt of the accused where the accused had committed the murder of the deceased Vijayamma by using the material object knife. Subsequent to committing the murder of the deceased, the accused have robbed gold articles MO-1 to MO-3 and silver articles MO-4 and MO-5. Accused No.1 is said to be the grandson of the deceased Vijayamma, that is her sister’s daughter’s son. This accused Nagaraja had entered into the house of Vijayamma with Accused Nos.2 and 3 with an intention to rob Vijayamma of her gold items and valuables, by killing her. Since she was related to Accused No.1, the said Accused No.1 is said to have called up Vijayamma at about 11.00 p.m. on 18.07.2011. On receiving a call on her mobile from Accused No.1, the deceased is said to have opened the door, after which the accused are said to have entered the house. The accused 18 had raised the TV volume to the maximum and then had proceeded to assault Vijayamma, so that her scream did not wake up her neighbours. PW-20, the Investigating Officer had formed a team and had undergone a search of the accused along with his team, in order to nab the culprits. PW-20 had secured PW-1 in order to enquire regarding the mobile number of Vijayamma and came to know that Vijayamma was using the mobile phone with sim No.9980230302. However, her mobile phone was not found near the dead body or in her house. Hence, PW-20 had summoned the call details pertaining to the sim of Vijayamma from the Superintendent of Police and received the same through e- mail. It was found that the sim card stood in the name of one Savitha, the sister-in-law of the deceased Vijayamma. The said Savitha was examined as PW-9 for the prosecution. The call details pertaining to 9980230302 revealed that on 18.07.2011 at 10.33.10 p.m., a call had been received by Vijayamma from the mobile 19 no.9916725189. PW-20 had then obtained the call details of the no.9916725189 and came to know that on the night of Vijayamma’s death, she had received a call at 10.33.10 p.m. from the said number. It further revealed that from 10.33 a.m. to 2.45 p.m., the said number was working under Kaval Bairasandra Tower, Bengaluru and from 10.23 p.m. onwards, it was working under Tiptur Tower and then from 10.31.05 p.m. for a period of 60 seconds, there was a conversation with sim card no.9980230302. On further examination, it was found that Sim card no.9880799470 was being used by Accused No.1 and on securing the call details of the said number also, it was found that on 18.07.2011 from 10.23.21 p.m. to 10.23.40 p.m. it was working under Tiptur Tower from where seven sms had been sent and from 7.48.08 a.m. on 19.07.2011 onwards, it was working under Kaval Bairasandra Tower. Thus, it was inferred that the persons owning these two mobile numbers had connection with each other and since a call had been made to Vijayamma from one of these numbers, the said persons had a role in her murder. 20 Accused No.1 is none other than the grandson of Vijayamma’s elder sister. This fact and the mother’s name of Accused No.1 being Kavitha, is not in dispute by the accused. This is as per the statement given by him under Section 313 Cr.P.C. However, Accused Nos.1 and 2 were arrested during the course of investigation by the Investigating Officer, wherein he has seized MO-11 mobile from the possession of Accused No.1 Nagaraja. On the next day, he has seized MO-12 knife and MO-13 towel based on his voluntary statement. On the same day, MO-1 to MO-5 gold and silver articles were seized. PW-10 in whose name the sim card No.9916725189 was standing, has given evidence for the prosecution and has stated that Accused No.2 had taken the sim card No.9916725189 from him few days back and that it was being used by Accused No.2. On demanding Accused No.2 to return the sim card, he had told PW-10 that the said sim card was not in a working condition. Believing the words of Accused No.2, the said PW-10 had kept quiet. But only when the police came in search of him that he learnt about 21 the fact that the said sim card had been misused and he had got the same cancelled. It is hence evident that accused No.1 – grandson of Vijayamma’s elder sister along with Accused Nos.2 and 3 had hatched a plan to eliminate the deceased in order to rob the gold items which were worn by the deceased Vijayamma who was residing alone in the scene of crime. Merely because it has not been elicited by the witnesses relating to the mahazar, it cannot cut the root of the prosecution case. PW-2 and PW-20 have given evidence for the prosecution in order to establish the seizure of MO-4 and MO-5 from the house of Accused No.3. It is at his instance by PW-20 being the Investigating Officer, who has been subjected to cross- examination as wherein it was suggested that MO-4 and MO-5 silver items were not used articles and he has denied the said suggestion. But, on a careful perusal of those articles MO-4 and MO-5 silver articles, it was found that they are not new articles, which has been observed by the 22 Trial Court while appreciating the evidence of PW-2 and PW-20. Further, from the evidence of PWs 1, 2 and 20, it is clear that MO-4 and MO-5 silver articles which belonged to the deceased Vijayamma were seized from the house of Accused No.3. It is at his instance and also it is based upon his voluntary statement as per Exhibit P45. Insofar as the photographs at Exhibits P14 to P-16 that Accused No.1 who was wearing the same clothes which were seized by the Investigating Officer under mahazar as per Exhibit P-20 conducted by him. Whereas the Forensic Science Laboratory report is at Exhibit P-46 and the evidence of PW-21 reveals that the clothes of Accused Nos.1 and 2 were stained with ‘O’ group human blood which was found on the clothes of the dead body of Vijayamma. This fact was also proved by the prosecution by placing evidence by examining PW-1. The prosecution has placed the evidence of PW-1, PW-2, PW-4, PW-11, PW-12, PW-17 and PW-19 and their evidence made clear that Vijayamma was wearing MO-1 to MO-3 gold articles 23 prior to her death whereas the said articles were found missing on her dead body. The said MO-1 to MO-3 were recovered from PW-11 and PW-17 at the instance of Accused No.1 in the presence of PW-12 and Srinivasa PW- 19. Exhibit P-30, the voluntary statement of Accused No.1 reveals that Accused No.1 had stated before PW-19 that he would show the place where he threw the knife covered with a towel. Accordingly, the same was seized. Therefore, the evidence has been appreciated by the Trial Judge in a proper perspective. Therefore, the impugned judgment of conviction and sentence passed by the Trial Court does not call for interference. Hence, he submits that the appeal deserves to be dismissed, as there is no substance in the contention advanced by the learned counsel for the appellant – Accused Nos.2 and 3.

10. Keeping in view the contentions urged by the learned counsel for the appellant as well as the learned State Public Prosecutor for the State as stated supra, it is gathered from the evidence of PW-1 that the deceased 24 Vijayamma was married to Ramakrishna of Belur. But she had no issues. Moreover, twelve years prior to the incident, she had lost her husband. Subsequent to the death of her husband she had become single and hence had shifted to Tiptur where her sisters were residing. Before shifting, she had sold her husband’s house which was in Belur and had invested the proceeds in a bank. She was surviving on the interest from the proceeds as well as from the family pension which she was receiving. From the past seven years she had been residing in a rented house in Tiptur and recently from the past 6-7 months she had shifted to C.B. compound, Tiptur wherein the house had been taken on lease. She was residing separately in C.B. compound. P.W-1 her sister was residing in a nearby locality and they were meeting each other frequently. On the day of the incident i.e., on 18.07.2011 she had been with her sister P.W-1 at about 4.00 p.m. to the Bhajana Mandali to attend bhajans and had returned home. The next day morning i.e., on 19.07.2011 at about 11.00 a.m. her elder sister’s son 25 namely, Shridhar who had accidentally visited her house had found that she was lying dead and hence had immediately informed about the death to Vijayamma’s sister. Her sister P.W-1 who had rushed to the spot had found her sister lying in a pool of blood. She found that wardrobes were wide open and could sense that the house was thoroughly searched. She also found that the gold jewellery which were regularly worn by Vijayamma namely, a single row gold chain, ear studs, two bangles were missing. At once she came to know that it must have been robbed by the miscreants who had murdered her and hence had lodged her complaint before the police as per Exhibit P-1. P.W.1 is the author of the complaint at Exhibit P-1. M.O-1 to M.O-3 gold items have been seized by the Investigating Officer P.W-19, at the instance of accused nos.1 and 2 by drawing a mahazar in the presence of P.W.12 being the mahazar witness. The same has been seized in his presence in the police station by drawing a mahazar as per Exhibit P.21. At the instance of accused 26 no.3, M.O-4 and M.O-5 silver deepam and silver cups have been seized from the house of accused no.3 in the presence of P.W.2. It is based upon his voluntary statement as per Exhibit P.45. This voluntary statement was recorded by PW-20. This evidence runs contrary to each other and the same has been seen in their evidence itself. Accused no.3 who has given voluntary statement as recorded by P.W-20, was taken into police custody after a lapse of 3 ½ months. He has given voluntary statement as per Exhibit P.45. On the basis of his voluntary statement M.O.4 and 5 were seized by the Investigating Officer by drawing a mahazar as per Exhibit P-8 in the presence of P.W.2. The same was drawn in between 1.10 p.m. to 2.00 p.m. when accused no.3 took the Investigating Officer to his house. Though the said M.O. 4 and 5 have been identified before the Court, but at a cursory glance of these material witnesses insofar as Exhibit P.8 of the seizure mahazar in terms of M.O.4 and M.O.5 and seizure mahazar at Exhibit P.21 in respect of M.O.1 and M.O.2 27 gold items, are found to be inconsistent with each other and there are discrepancies found in their evidence. When P.W.2 and P.W.12 including P.W.1 being the author of the complaint were cross-examined incisively, they have elicited evidence by dismantling the theory put forth for having conducted these mahazars at Exhibits P.8 and P.21 in the presence of P.W.2 and P.W.12 by P.W.19 and also P.W.20 being the Investigating Officer respectively. At a cursory glance of the evidence of P.W.2 and P.W.20 insofar as the seizure of M.O.4 and M.O.5 from the house of accused no.3 and so also M.O.1 to M.O.3 gold items said to be robbed by the accused by committing murder of the deceased Vijayamma by using M.O. 12 knife said to be seized by the Investigating Officer as per the voluntary statement of accused no.1 Nagaraja. Nagaraja was said to be the grandson of deceased Vijayamma. P.W.7 being the witness relating to the mahazar, when he was subjected to examination he had averred that the culprits were traced in the case committing the murder of deceased Vijayamma. Except this fact which has been 28 stated in the evidence, nothing sort of evidence has been elicited by the prosecution in order to prove the guilt of the accused insofar as he being secured as a mahazar witness. Relating to Exhibit P.11 which bears his signatures, the said mahazar has been conducted by P.W.19 in part. But at a cursory glance of the evidence of the P.W.7 and P.W.19 in terms of Exhibit P.11 mahazar said to be conducted by him, are found to be inconsistent and with discrepancies. P.W.20 being an Investigating Officer and also one PSI Raghava produced accused nos. 1 and 2 before P.W.19 being an Investigating Officer in part on 23.07.2011 with a report as per Exhibit P.29. Subsequently he recorded the voluntary statements of accused no.1. It is based upon his voluntary statement he conducted seizure mahazar as per Exhibit P.11 and also had seized the mobile phone with IMEI No.359932034885443. M.O.11 mobile phone has been seized by P.W.19. But, he has not seized any documents relating to the aforesaid mobile. 29 P.W.17 has stated in his evidence that on 22.07.2011 the first accused Nagaraj and third accused had come to his jewellery shop and had pledged MO-1 and MO-2, for which he had paid Rs.56,000/-. As the evidence of P.W.1 relates to the mahazar at P.W.17 conducted by the Investigating Officer P.W.19 and so also the evidence of P.W.11 and P.W.12 secured as panch witnesses in terms of the said mahazar reveals certain inconsistencies and they are contradictory to each other as these gold items were said to be pledged by accused no.1 Nagaraja as per his voluntary statement at Exhibit P.13.

11. At a cursory glance of the entire evidence of these witnesses including the cross-examination which has been done by the defence counsel for the accused, it is found that there are several discrepancies and that they are contradictory to each other on material aspects. Therefore it does not repose confidence that the said gold items were seized by P.W.19 in the presence of panch witness as per Exhibit P.17. This contention was also 30 taken by the learned counsel for the appellant during the course of his arguments. P.W.19 being the Investigating Officer has stated in his evidence that on 19.07.2011 at about 2.00 p.m., P.W.1 Ramarathnamma had given a complaint. Based on her complaint, case in crime No.76 of 2011 came to be registered by registering an FIR as per Exhibit P.28. The evidence of P.W.19 and P.W.20 runs contrary to the evidence of P.W.1 being the author of the complaint at Exhibit P.1. It is based upon the voluntary statement of first accused Nagaraja, the grandson of deceased Vijayamma that M.O.1 to M.O.3 gold items were said to be seized by the Investigating Officer conducting a mahazar as per Exhibit P.17. It is based upon the voluntary statement of accused no.3 that M.O.4 and M.O.5 silver items were said to be seized by P.W.20 by conducting seizure mahazar as per Exhibit P.8 in the presence of P.W.2 panch witness. But, the said witness has not supported the case of the prosecution insofar as recovery of M.O.4 and M.O.5. Absolutely, no other evidence finds 31 place for the prosecution to substantiate the case relating to M.O.4 and M.O.5 silver items and M.O.1 to M.O.3 gold items said to be robbed by these accused. Exhibit P.1 is said to be given by P.W.1 being the sister of the deceased Vijayamma and Exhibit P.10 is the inquest held over the dead body. During inquest, some of the statements of witnesses have been recorded and they relate only to missing of gold items but not even a single person had spoken about the disappearance of any silver items from the house. Accused no.3 Rajesh being a stranger to the deceased Vijayamma though many witness have been examined by the prosecution, no witnesses have spelt against accused no.3 about any circumstances but his name has been included in the charge sheet which has been laid against the accused. After 3 ½ months this accused was taken to police custody by submitting a requisition to this Court and on showing that he was arrested. Exhibit P-45 is said to be the voluntary statement recorded by P.W.20 in respect of this accused 32 no.3. In pursuance of his voluntary statement it is stated that M.O.4 and M.O.5 silver articles were recovered under Exhibit P.8 from his house. But the prosecution has not placed acceptable evidence to substantiate and prove the recovery of these articles at the instance of the appellant- accused no.3 namely, Rajesh. There is a serious infirmity regarding recovery of M.O.4 and M.O.5 from the house of this accused no.3. Whereas Section 27 of the Indian Evidence Act makes it clear that, merely because marking of Exhibit P.45 voluntary statement of the accused, does not amount to proof. Therefore, there is an infirmity in the alleged voluntary statement of an information said to be given by this accused no.3 as the same has not been proved as required under Section 27 of the Indian Evidence Act. The fact that silver articles were missing from the house of the deceased was not stated during the course of investigation but only after the arrest of accused no.3 Rajesh and only based upon the arrest of the co- accused that the story of silver articles has developed. The same can be inferred on going through the evidence of 33 P.W.20 being the Investigating Officer who has laid the charge sheet against the accused. It is moreover relevant to state that M.O.4 and M.O.5 silver articles are regularly used in every house. It is said that these two articles were found in the almirah of the house of the accused no.3. But it is not proved that these silver articles were possessed by deceased Vijayamma and the same went missing after her death. Therefore, it is said that the recovery and seizure in respect of M.O.4 and M.O.5 silver articles are not proved as required under Section 27 of the Indian Evidence Act. The same have been seized only on the basis of voluntary statement given by the accused as per Exhibit P.45, that too this accused has been taken into custody by the police after more than 3 ½ months as he had surrendered before the committal Court. Accused No.2 has been roped into the alleged crime only on the basis of mobile conversation from the mobile no.9916725189 to Vijayamma’s mobile. The mentioned sim no.9916725189 was in the possession of Accused No.2, as a result of which he was apprehended. However, 34 it is to be seen that the said number did not stand in the name of Accused No.2 and added to the said fact, the prosecution had not established that Accused No.2 had conversation with Vijayamma or Accused No.1 beyond all reasonable doubt. It is only on the basis of surmises and conjectures and only based upon circumstantial evidence that the said accused had been roped into the crime. Hence, the Trial Court erred in convicting the said accused, when his involvement had not been proved by the prosecution by placing positive, cogent and consistent evidence in this regard. P.W.17 being the proprietor of the jewellery shop wherein M.O.1 and M.O.2 gold items said to be pledged by first accused Nagaraja who said to have been accompanied by accused no.3 Rajesh. P.W.17 had stated that A1 and A3 had come to his jewellery shop for pledging M.O.1 and M.O.2. But, the prosecution has not come up with concrete material that accused no.3 Rajesh had accompanied accused no.1 Nagaraj. The entire case of the prosecution rests upon circumstantial evidence. Every 35 circumstance has to be proved by linking the chain of circumstances without any cloud of doubt. Insofar as M.O.1 to M.O.3 gold items said to be robbed by these accused in this appeal and so also M.O.4 and M.O.5 silver items said to be robbed and also found to be in possession of Accused No.3 Rajesh which has been seized by P.W.20 is concerned, the chain of circumstances has not been established without giving any cloud of doubt. The Trial Court has erringly come to the conclusion that the prosecution has proved the guilt of the accused by placing cogent, corroborative and consistent evidence in probablising that these appellants-accused no.2 and 3 had also participated with accused no.1 Nagaraj in committing the murder of Vijayamma by means of M.O.12 knife. The Trial Court has hence misdirected the evidence placed by the prosecution and so also misread the evidence to come to a conclusion that the accused had committed the murder by means of M.O.12 knife. However, the prosecution has not proved the guilt of accused Nos.2 and 3 beyond all reasonable doubt by 36 producing cogent, consistent and positive evidence to substantiate the case against these accused for having committed the murder of Vijayamma and also robbed her gold ornaments M.O.1 to M.O.3 and silver articles M.O.4 and M.O.5.

12. Therefore for the aforesaid reasons, we are of the opinion that the judgment of the Trial Court requires to be interfered with. Hence, we pass the following order: The point framed by this court is answered in the negative and the appeals filed by the appellant – Accused Nos.2 and 3 under Section 374(2) of the Code of Criminal Procedure, are hereby allowed. Consequently, the judgment of conviction and sentence passed by the Fast Track Court, Tiptur, in S.C.No.279 of 2011 dated 14.09.2012 for the offences punishable under Sections 392, 394, 302 read with Section 34 of the IPC is hereby set-aside. The appellant-accused nos. 2 and 3 in these appeals are acquitted of the charges levelled against them. 37 The appellant in both the appeals - accused Nos.2 and 3 shall be set at liberty by the jail authorities, if they are not required in any other cases. Sd/- JUDGE KS Sd/- JUDGE