Sri Bhooshith B Vs. State Of Karnataka - Court Judgment

Excerpt:

.....prabhuling k navadagi, advocate general a/w sri sheelvanth v.m., spp-i and sri vijayakumar majage, addl. spp) … 4 these criminal appeals are filed under section3742) of the code of criminal procedure, 1973, praying to set aside the impugned judgment and order of conviction dated3108.2018 and sentence dated0309.2018 passed by the learned lxiii additional city civil and sessions judge, bangalore in s.c.no.1011/2010 - convicting the appellants/accused for the offences punsihable under sections342 364a, 302, 201, 120b read with34of ipc and sentencing them to undergo imprisonment for life and to pay a fine of rs.25,000/- each, in default of payment of fine amount, to undergo rigorous imprisonment for one year for the offences punishable under sections120b), 364a, 302 r/w 34 ipc; to undergo simple imprisonment for six months and to pay a fine of rs.2,000/- each in default of payment of fine, simple imprisonment for two months for the offence punishable under section342r/w34of ipc; and imprisonment for five years and to pay a fine of rs.10,000/- each, in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under section201r/w34of ipc.....

Judgment:

R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE7h DAY OF APRIL, 2021 PRESENT THE HON’BLE MR. JUSTICE B. VEERAPPA AND THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL NO.1628/2018 C/W CRIMINAL APPEAL Nos.1659/2018, 1840/2018, 1937/2018, 1960/2018, 1976/2018 AND612019 BETWEEN:

1. SRI BHOOSHITH B., S/O BHAGWANT RAO, AGED ABOUT27YEARS, RESIDING AT NO.2, 6TH MAIN, VASANTHNAGAR, BANGALORE-560052. ...APPELLANT IN CRL.A.1628/2018 (BY SRI HASHMATH PASHA, SENIOR COUNSEL ALONGWITH SRI SYED MUZAKKIR AHMED, ADVOCATE) 2. SANDHYA @ SANJANA D/O BRAMACHARI K. N., AGED ABOUT32YEARS, R/AT NO.207, 3RD CROSS, K.E.B. LAYOUT, SANJAYANAGARA, BENGALURU CITY-560094. ...APPELLANT IN CRL.A.1659/2018 (BY SRI PRASANNA KUMAR, ADVOCATE) 2 3. KUMAR @ ANJENEYA S/O. MARIYAIAH, AGED ABOUT38YEARS, R/AT No.182, 4TH CROSS, 2ND MAIN, KVK LAYOUT, DEEPANJALI NAGAR, MYSURU ROAD, BENGLAURU56002. ...APPELLANT IN CRL. A. No.1840/2018 (BY SRI SANDESH J CHOUTA SENIOR COUNSEL A/W SRI ISMAIL M MUSBA, ADVOCATE) 4. SRI SHIVAPRATHAP S/O MAHADEVASWAMY, AGED ABOUT31YEARS, R/AT NO.4/60, 7TH MAIN, 4TH BLOCK, NANDHINI LAYOUT, BANGALORE-560 096. ...APPELLANT IN CRL. A. No.1937/2018 (BY SRI M. SHASHIDHARA, ADVOCATE) 5. CHETAN S/O MUNIYELLAPPA, AGED ABOUT26YEARS, R/AT NO166 2ND MAIN , 2ND CROSS, FLOUR MILL ROAD, ASHWATHANAGARA, SANJAYANAGARA POST, BENGALURU CITY–560094. ...APPELLANT IN CRL. A. No.1960/2018 (BY SRI M. SHASHIDHARA, ADVOCATE) 6. SRI ASHWATH, (A2), S/O MAREGOWDA, AGED ABOUT25YEARS. R/AT NO.126, 80 FEET ROAD3SANJAYNAGAR MAIN ROAD, NEAR CANARA BANK, ASHWATHNAGARA, BENGALURU-560094. ...APPELLANT IN CRL. A. No.1976/2018 (BY SRI NANJUNDA GOWDA M. R., ADVOCATE) 7. RAVI KUMAR @ RAVI, S/O CHANDRAPPA, AGED ABOUT28YEARS, R/AT NO.58, 3RD CROSS, R. M. S. COLONY, SANJAYNAGARA, BANGALORE-560094. (NOW UNDERGOING IMPRISONMENT AS CONVICT PRISONER AT CENTRAL PRISON, BANGALORE) … APPELLANT IN CRL. A. No.61/2019 (BY SRI SANDESH J CHOUTA SENIOR COUNSEL A/W SRI ISMAIL M MUSBA, ADVOCATE) AND: STATE OF KARNATAKA THROUGH CCB POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE. … RESPONDENT (COMMON) (BY SRI PRABHULING K NAVADAGI, ADVOCATE GENERAL A/W SRI SHEELVANTH V.M., SPP-I AND SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) … 4 THESE CRIMINAL APPEALS ARE FILED UNDER SECTION3742) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE IMPUGNED

JUDGMENT

AND

ORDER

OF CONVICTION DATED3108.2018 AND SENTENCE DATED0309.2018 PASSED BY THE LEARNED LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN S.C.No.1011/2010 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNSIHABLE UNDER SECTIONS342 364A, 302, 201, 120B READ WITH34OF IPC AND SENTENCING THEM TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY A FINE OF RS.25,000/- EACH, IN DEFAULT OF PAYMENT OF FINE AMOUNT, TO UNDERGO RIGOROUS IMPRISONMENT FOR ONE YEAR FOR THE OFFENCES PUNISHABLE UNDER SECTIONS120B), 364A, 302 r/w 34 IPC; TO UNDERGO SIMPLE IMPRISONMENT FOR SIX MONTHS AND TO PAY A FINE OF RS.2,000/- EACH IN DEFAULT OF PAYMENT OF FINE, SIMPLE IMPRISONMENT FOR TWO MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION342R/W34OF IPC; AND IMPRISONMENT FOR FIVE YEARS AND TO PAY A FINE OF RS.10,000/- EACH, IN DEFAULT OF PAYMENT OF FINE, TO UNDERGO SIMPLE IMPRISONMENT FOR THREE MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION201R/W34OF IPC AND ALL THE SENTENCES TO RUN CONCURRENTLY. THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT

ARE COMING ON FOR PRONOUNCEMENT OF

JUDGMENT

THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

5.

JUDGMENT

Criminal Appeal Number 1628/2018 is filed by accused No.5; Criminal Appeal Number 1659/2018 is filed by accused No.7; Criminal Appeal Number 1840/2018 is filed by accused No.6; Criminal Appeal Number 1937/2018 is filed by accused No.4; Criminal Appeal Number 1960/2018 is filed by accused No.3; Criminal Appeal Number 1976/2018 is filed by accused No.2; and Criminal Appeal Number 61/2019 is filed by accused No.1.

2. All these appeals are filed against the impugned judgment of conviction dated 31.8.2018 and order of sentence dated 3.9.2018 passed by the learned LXIII Additional City Civil and Sessions Judge, Bangalore in S.C.No.1011/2010 convicting the appellants-accused for the offences punishable under Sections 342, 364A, 302, 201, 120B r/w 34 of the Indian Penal Code (for short, hereinafter referred to as the ‘IPC’). and sentencing them to undergo imprisonment for life and to pay a fine of Rs.25,000/- each, in default of payment of fine amount, rigorous imprisonment for one year for the offences punishable under Sections 120B, 6 364A, 302 r/w 34 IPC; simple imprisonment for six months and to pay a fine of Rs.2,000/- each in default of payment of fine, simple imprisonment for two months for the offence punishable under Section 342 r/w 34 of IPC; and imprisonment for five years and to pay a fine of Rs.10,000/- each, in default of payment of fine, simple imprisonment for three months for the offence punishable under section 201 r/w 34 of IPC and all the sentences to run concurrently.

3. It is the case of the prosecution that the complainant P.W.1 Smt. Anjali Sharath is the wife of the deceased Dr. Sharath Kumar, residing at Sanjaynagar, Bangalore, since last 10 years. Her husband was a doctor by profession having two female children. On 9.4.2010 at about 10.30 a.m., Dr. Sharath Kumar was missing from the clinic namely ‘Adarsh Clinic’. On 10.4.2010, a complaint was given by P.W.1 to search and find out her husband, who was a pediatrician doctor and had made his name in the surrounding area. Usually, if any patient approached him for treatment, in any way, he used to attend the patients. On 9.4.2010, the doctor got up in the morning, left his daughter Shilpa to M.S. Ramaiah Engineering College, Bangalore and went to the 7 hospital at about 10.30 a.m. The complainant was alone in her house. The doctor Sharath Kumar telephoned from the Mobile No.9844082898 to the landline of P.W.1-complainant Phone No.23415000 to receive the gold ornaments from Shailendra from Nirmala Jewellers, Bangalore and after some time, another person would come home to get the golden ornaments and without opening the door, the complainant has to hand over the same through window, but she did not agree to transact golden ornaments. After 5 to 10 minutes, Shailendra came to the house of the complainant, handed over the golden ornaments weighing about 600 gms., and told her to handover the same (gold ornaments) for somebody’s marriage, who comes to receive them. The complainant told Shailendra that her husband had told her to hand over the gold ornaments. After sometime, an unknown person came to the house of the complainant, asked her to handover the gold ornaments. Accordingly, the complainant had handed over the gold ornaments. The said person had asked water. So the complainant gave water to him, he drank water and went back with the gold ornaments. After 5 minutes, the Dr.Sharath Kumar called over mobile to the complainant for 8 confirmation of handing over of the gold ornaments to which the complainant replied that she had handed over the gold ornaments to the person, who came to receive the same and asked him to come early to go to the clinic.

4. It is the further case of the prosecution that even after 2.00 p.m., the Dr. Sharath Kumar did not come. Again the complainant called him over his mobile and he replied that he would come within an hour. Thereafter, her daughter - Shilpa came from the college. The complainant went to see her brother, who was admitted at the Jain Hospital, Bangalore, leaving her daughter alone and asked her to inform her father, after he comes to the home, to visit the hospital to see her brother. After arrival to the Jain Hospital, about 3-4 times, the complainant called to her husband over mobile phone, who used to tell her that he would come as he is away from Bangalore. On the same day, while the complainant was returning to her house from the hospital, she received a call at 8.00 p.m. from her husband, but she was unable to talk with her husband as there was lot of disturbances. Again at 8.05 p.m. Dr.Sharath Kumar called the complainant over the mobile 9 phone and the complainant told him that she would call back after sometime and cut the call. After returning to her house, the complainant called her husband – Dr. Sharath Kumar over mobile, but it was switched off. Thereafter, throughout night the complainant was calling her husband to his mobile phone, but it was switched off.

5. It is the further case of the prosecution that on 10.4.2010, the complainant informed her relatives about the incident of missing of her husband and she lodged a complaint. Thereafter, Sanjaynagar Police informed her that some unknown persons have killed her husband and thrown his dead body near Kannaguni Village which is within the jurisdiction of Amrutur Police Station and a criminal case has been registered. The complainant after coming to know about the murder of her husband, enquired Smt. Deenamma - nurse, Nageshwara Rao of Adarsh Medical Store and Shailendra of Nirmala Jewellers. Smt. Deenamma, the nurse told that on 9.4.2010 at about 11.30 a.m. that some unknown persons had taken her husband for treatment; Shailendra told that on the same day at about 7.15 p.m. the deceased Dr. Sharath 10 Kumar had told him to handover 200 gms., of gold to Nageshwar Rao and accordingly, he had handed over 200 grms., of gold to Nageshwar Rao. On the same day, the deceased Dr. Sharath Kumar had also given a direction to Nageshwar Rao to handover 200 gms., of gold to one Vinaya. Accordingly, he handed over 200 gms., of gold to Vinaya. The complainant had complained that some unknown persons had murdered her husband for money and gold ornaments worth Rs.15,00,000/- (Rupees Fifteen Lakhs) which had been extorted from her husband and after killing him, the dead body was thrown near a bridge with an intention to destroy the evidence.

6. On the point of jurisdiction, the complaint registered on 10.4.2010 was transferred to Sanjaynagar Police Station. After receipt of the charge sheet, the I ACMM, Bangalore registered a case against accused Nos.1 to 7 for the offences punishable under Sections 342, 364A, 302, 201, 120B r/w Section 34 of IPC. Thereafter the matter was committed to the Court of Sessions. The learned Sessions Judge framed charges, read over and explained 11 the same to the accused, who pleaded not guilty and claimed to be tried.

7. In order to prove its case, the prosecution in all examined 65 witnesses as P.Ws.1 to 65, got marked the documents Exs.P.1 to 111 and material objects – M.Os.1 to 74. On behalf of the defence, though no witnesses were examined, the documents – Exs.D.1 to 4 were got marked.

8. After completion of the evidence of the prosecution witnesses, the statements of the accused persons as contemplated under the provisions of Section 313 of the Code of Criminal Procedure were recorded. The accused denied all the incriminating evidence adduced against them. The learned Sessions Judge based on the aforesaid pleadings formulated five points for consideration.

9. Considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution has proved beyond all reasonable doubt that on 9.4.2010, accused Nos.1 to 7 with common intention, conspired together to abduct Dr.Sharath Kumar for making a wrongful gain 12 from him and thereby committed an offence punishable under Section 120B r/w Section 34 of IPC; wrongfully confining him in the house belonging to accused No.1 committed an offence punishable under Section 342 r/w Section 34 of IPC; abducted him and demanded a ransom of Rs.50,00,000/- hard cash and jewels, but extorted only jewels and thus committed an offence punishable under Section 364A r/w Section 34 of IPC; strangulating him by using rope and causing the death of the deceased Dr. Sharath Kumar committed an offence punishable under Section 302 r/w 34 of IPC; and throwing the dead body near a bridge of Kannaguni Village, Kunigal Taluk and thereafter, burning the belongings of the deceased so as to destroy the evidence committed an offence punishable under Section 201 r/w Section 34 of IPC. Accordingly, the learned Sessions Judge found all the appellants-accused guilty of the aforesaid offences and by the impugned judgment of conviction dated 31st August, 2018 and order of sentence dated 3.9.2018 convicted and sentenced all the accused to undergo imprisonment for life with default clauses and directed the substantive sentences to run concurrently. Hence, the present criminal appeals are filed by the accused persons. 13

10. We have heard the learned Counsel for the parties.

11. Sri Hashmath Pasha, learned Senior Counsel appearing for the appellant-accused No.5 in Criminal Appeal No.1628/2018 contended that the impugned judgment of conviction and order of sentence passed by the trial Court against accused No.5 convicting him for the offences as alleged in the charge sheet is erroneous and contrary to the material on record. He would further contend that without appreciating the evidence tendered with respect to each of the accused, the present impugned judgment attributing all the allegations against all the accused is nothing, but non-application of mind and hence, on that ground alone, the impugned judgment of conviction and order of sentence is liable to be set aside. He would further contend that the trial Court has failed to appreciate the individual role of the accused attributed by the prosecution on the basis of which charges have been framed. As such, the impugned judgment of conviction and order of sentence rendered by the trial Court is contrary to the charges framed and has made out a new case other than the one set out in the charges framed and 14 therefore, the impugned judgment of conviction and order of sentence is bad in law.

12. The learned Senior Counsel further contended that accused No.5 was on bail throughout the proceedings based on the fact that prima facie, the materials did not reveal the involvement of accused No.5 in kidnapping the deceased or in the ultimate death of the deceased. As such, in the absence of any such material, convicting accused No.5 for the substantial offence was perverse. He would further contend that since the missing complaint Ex.P.1 is lodged on 10.4.2010 at 12.15 noon and the entire case is based on the circumstantial evidence, i.e., the last seen circumstances and recovery of material objects M.Os.9, 16, 47, 48, 49 are not proved by the prosecution. He would further contend that since P.W.23 has neither identified accused No.5 nor the gold ornaments which were recovered at his instance, P.W.24 – nurse though has identified accused Nos.4 and 6 based on the recoveries of M.Os.52, 53 to 63 i.e., B.P. Apparatus, stethoscope and other articles, the conviction of accused No.5 cannot be sustained. He would further contend that P.W.1 wife of the deceased has given her evidence 15 about the receipt of jewels from accused No.4 and not from accused No.5. He would further contend that though almost all the prosecution witnesses have turned hostile to the crime, have supported the case of the recovery of material objects. Based on the missing complaint dated 10.4.2010 - Ex.P.1 lodged by P.W.1 – wife of the deceased, a case in Crime No.101/2010 was registered at 12.15 noon for man missing. The third complaint Ex.P.12 is lodged on 10.4.2010 by Mohammed Anwar and a case in Crime No.46/2010 was registered at 11.30 a.m. on 14.4.2010 for the offences punishable under Sections 302 and 201 by P.W.56 – Chandrasekhar, Assistant Sub-Inspector of Police at Amruthahalli Police Station. Ex.P.2 the second complaint lodged by the wife of the deceased against unknown persons on 11.4.2010 to the Sanjaynagar Police Station was registered at 20.45 hours for the offence punishable under Section 364A of IPC and the same was sent to the JMFC on 12.4.2010 at 11.00 a.m. He would further contend that Ex.P.13 the inquest panchanama-column No.3 says that in the morning on 10.4.2010 at 8.45 a.m. when Venkatesh s/o Venkatappa, aged about 28 years, was going from Kunnaguni village to Adonahalli, on the way when he was attending the nature 16 call, he had seen the dead body and he is the first eye witness for recovery of the dead body, but he has not been examined by the prosecution. As such, he contended that there is a serious lapse on the part of the prosecution in non-examination of the eye witness, who has first seen the dead body of the deceased.

13. The learned Senior Counsel further contended that Ex.P.50 the postmortem report of the deceased reveals that the body is that of a male aged about 50 years, well built and nourished of height 5 feet 6 inches; Both eyes closed; Black mix white hairs present; The opinion with regard cause of death was due to pressure over the neck structures, secondary to ligature strangulation. He would further contend that P.W.1 has identified accused No.4 in the Test Identification Parade (TIP) and has deposed that on 9.4.2010, he had come to her house and taken back the jewels; P.W.24 – Smt. Deenamma -Nurse has wrongly identified accused No.5, but later has identified accused No.4 Shiva Prathap after TIP; P.W.23-Nageshwar Rao, owner of the medical store has identified the accused No.5 as per the direction of the police and therefore, the trial Court was not justified in convicting 17 accused No.5. P.W.13 –Mallikarjun Channamal – Lecturer in Veerendra Patil College has deposed that he knew accused Nos.3 Chethan and accused No.5 Bhooshith, who were studying in BBM in the year 2010 in their college. On 10.4.2010 at about 10.30 p.m. BBM students of his college were taken to Ooty and Coimbatoor and on 13.4.2010 at 7.30 a.m. returned to Bangalore. At that time, the CCB Police had arrested accused Nos. 3 and 5 outside the campus of the College. P.W.65 – B.N. Nyamegowda, Assistant Commissioner of Police, CCB., has recorded the voluntary statement of accused No.5 as per Ex.P.89, Ex.P.21 is the seizure mahazar for recovery of material objects -M.Os.9, 16, 47 to 49 from the house of accused No.5 which material aspect has not been considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence.

14. The learned Senior Counsel further contended that P.W.18 – Shrishaila, who was doing the real estate business at Malleswaram is the panch witness for Exs.P.21 and 22 seizure mahazar for recovery of material objects – M.Os.9, 16, 24, 47 to 50 - gold ornaments, mobile phones, and currencies containing 18 denominations of Rs.500/- which was trapped. The said recoveries are planted against accused Nos.3 and 5, who are classmates. Ex.P.17 was the receipt dated 12.4.2010 for having the amount drawn. Therefore, the recoveries made from the house of accused No.5 is false and doubtful, which aspect has not been considered by the learned Sessions Judge. He further contended that the panch witnesses are selected and no neighbours were examined. The house where the accused No.5 was residing was not in his exclusive possession as there were other in-mates in the house, who have not been examined. Except framing of charge No.1 against accused No.5, there is no other charge framed against him. Hence, the conviction of accused No.5 and sentencing him to undergo imprisonment of life is without any basis. Absolutely, as there is no material established against him, his conviction is based on assumption and presumption, which cannot be sustained.

15. In support of his contentions, the learned Senior Counsel relied upon the following dictums of the Hon’ble Supreme Court:

19. i) Anil Alias Raju Namdev Patil –vs- Administration of Daman & Diu. Daman and Another reported in (2006) 13 SCC36 Paragraphs 54 to 56; ii) Leo Roy Frey and Thomas Dana –vs- The Superintendent, District Jail, Amritsar and Another reported in AIR1958SC119 paragraph-4 conspiracy; iii) Radha Kishan –vs- State of Uttar Pradesh reported in AIR1963SC822(Recovery) paragraphs- 11, 12, 13; iv) State of U.P. –vs- Arun Kumar Gupta Reported in (2003) 2 SCC202paragraphs-14 and 15 (panchas should not be selective) 16. The learned Senior Counsel has also brought notice of this Court the memo dated 12.4.2010 issued under Section 364(A) of IPC., by the Commissionerate of Police, Bangalore City, entrusting further investigation and to conduct day-to-day 20 investigation of Crime No.101/2010 of Sanjaynagar Police Station to the Assistant Commissioner of Police, Special Enquiries Squad, CCB, Bangalore City and report with immediate effect wherein the ACP of CCB was not authorised to file the final report. Therefore, he sought to allow the appeal filed by accused No.5.

17. Sri Sandesh Chouta, learned Senior Counsel appearing for accused No.1 in Criminal appeal No.61/2019 and accused No.6 in Criminal Appeal No.1840/2018 contended that the impugned judgment of conviction and order of sentence passed by the trial Court is erroneous and contrary to the material on record. Accused Nos.1 to 3 at the last moment had conspired to kill the deceased Dr. Sharath Kumar and the main allegation is against accused Nos.1 to 4, but not against accused No.6. The important prosecution witnesses are P.Ws.2, 17 to 19, 23, 24, 26, 41 and 65 and the wife of the deceased – P.W.1, while lodging the missing complaint on 10.4.2010, had not disclosed the events that had happened on 9.4.2010 including the calls received from her husband to take the jewels and to hand over the same to accused No.4 which fact has not been considered by the trial Court while 21 passing the impugned judgment of conviction and hence, he sought to set aside the impugned judgment of conviction and order of sentence. In support of his contentions, he relied upon the dictum of the Hon’ble Supreme Court in the case of Naravan Dass Indurakhya vs State Of Madhya Pradesh reported in (1972) 3 SCC392particularly para-12.

18. The learned Senior Counsel further contended that the prosecution has failed to explain the delay in lodging the missing complaint which has lead to suppression of events that had happened on 9.4.2010. Since P.W.2 is the star witness, no much reliance can be placed upon the evidence of P.Ws.1 to 16 in so far as accused Nos.1 and 6 are concerned. He would further contend that P.Ws.17 to 19 are panch witnesses to mahazars - Exs.P.15 to 19, 21, 22, 24 and 26 on the basis of the voluntary statements of accused Nos.1 to 7 material objects were seized and these panch witnesses are neither independent nor respectable inhabitants of the locality where seizures were effected. Therefore, no reliance can be placed on their evidence. He would further contend that marking a portion of Ex.P.84 only with regard to discovery of facts 22 is impermissible since the entire statement has to be marked based on the unmarked portions of documents – Exs.P.25, 26 – seizure mahazars for recovery of material objects B.P.Operatus, Stethoscope, purse, mobile phone, rope, Topi (monkey cap).

19. The learned Senior Counsel further contended that in Volume-3 of the original records consists the statement of accused No.1 recorded on 13.4.2010 and the statements of accused Nos.1 to 7 which are not marked before the Court and therefore, the circumstances are not proved by the prosecution which goes to show that, the recovery of material objects M.Os.52 to 63 are suspicious and the said material aspect has not been considered by the trial Court. He would further contend that the evidence of P.W.17 - Harirao Sindhya, who is the panch witness for seizure of material objects M.Os.6, 7, 15, 18, 19, 20, 21, 38 and 39 is contrary to the provisions of Section 100(4) of the Code of Criminal Procedure as he was not local person to be examined. In support of his contentions, the learned Senior Counsel relied upon the dictum of the Hon’ble Supreme Court in the case of Yakub Abdul Razak Memon –vs- State Of Maharashtra (2013) 13 SCC123 paragraphs-355 to 358.2 with regard to body search was not done. Even the material objects seized by P.W.65- Nyamegowda, ACP, from the almirah were not in exclusive possession of the accused. But in the entire evidence of P.W.65, we find no clinching material to link appellant No.6 in involvement of the offence and even also there is no other corroboration for recovery from the appellant- accused No.6 for the alleged offence and there is no gain in the alleged offence by accused No.6 either directly or indirectly with regard to recovery of any articles. As such, he contended that the impugned judgment of conviction and order of sentence is liable to be set aside. Since the prosecution has failed to examine the co- panch witnesses – C.W.25 – Vijay kumar, C.W. 38 Ravindranath Rai and C.W.40 Shivarudrappa, Goldsmith, the same is also adverse to the case of the prosecution.

20. The learned Senior Counsel for accused Nos.1 and 6 further contended that P.W.18-Shreeshaila, a Real Estate Businessman and panch witness for seizure mahazar has deposed that on 13.4.2010 on the basis of the notice - Ex.P.20 issued by the police to be present as pancha, he had accompanied the police 24 officials to the house of accused No.5 and from the almirah, they seized the material objects – M.O.9 - one necklace, M.O.16 - one bracelet, M.Os.48 – and 49 - two mobile phones, M.O.47-16 currency notes of 500 denominations were seized under the seizure mahazar Ex.P.21. He has further deposed that other than him, there were other panch witnesses viz., Ramnath, Shivarudrachar and Nyamegowda and they all have put their signatures in the seizure mahazar and by that time when the seizure mahazar was drawn it was about 7.10 to 7.45 p.m. Then the police officials took them to the house of accused No.3 Chethan which was at Ashwathnagar and from the almirah, one leaf chain-M.O.24, one pair gold bangle-M.O.16, cash of Rs.8,000/- as M.O.50 were seized under seizure mahazar Ex.P.22 and his signature is at Ex.P.22a. Other than him, Ramanath, Shivarudrachar and Nyamegowda have also put their signatures on the seizure mahazar Ex.P.22 which was drawn at about 8.15 to 8.45. Accordingly, the CCB police have recorded his statement.

21. In his cross-examination, P.W.18 has deposed that when they went to the house of accused No.3, though one woman 25 and one man were present, the police have neither enquired about them from P.W.18, who were his inmates nor recorded their statements. Before going to the house of accused No.3, the police have not checked the body of the accused and he is not aware whether the police had requested the adjacent owners of the house of accused No.3 to be as panchas when they made the seizure from the house of accused No.3. He does not know whether the police have photographed or videographed the seizure of the material objects. Ex.P.22 is the seizure mahazar drawn and written by the police and he is not aware, who has written it, but it was written in the house of accused No.3 in his presence. He is also not aware whether the inmates of the house of accused No.3 have signed Ex.P.22 or not. He has denied the suggestions that on 13.4.2010 he was not distributing the pamphlets; Police have taken him to the house of accused No.3 Chethan from the house of accused NO.5 Bhushith; Not shown the material objects – leaf chain, one pair of gold bangle, cash of Rs.8,000/- from the almirah of accused No.3, no seizure mahazar Ex.P.22 was drawn in his presence in the house of accused No.3 and he has put his signature to Ex.P.22 in 26 the CCB Police Station; since he and Sharathkumar are friends and he is telling lies.

22. P.W.18 in his further cross-examination has deposed that since his house was near the house of accused No.5 – Bhushit, the police had called him to be panch witness for Ex.P.20 and he has put his signature. Along with him Ravindranath was also present, who has also put his signature to Ex.P.20. When he entered the house of accused No.5, a child, male and female members were present, but he did not enquire about them. Even the police did not enquire about them. Ex.P.21 was drawn near the house of accused No.5 but he does not know, who has drawn the mahazar. The inmates of the house of accused No.5 have not signed the seizure mahazar. The house of accused No.5 is situated in the first floor. He has denied the suggestion that he did not go to the house of accused No.5. He has further deposed that he does not know the measurement of the house of accused No.5, when he went to the house of accused No.5 it was a duplex house and there were steps inside the house and above that house, there was another house. When they were near the house of accused No.5, 27 at that time, ACP – Sri Nyamegowda and his subordinates had come there.

23. The learned Senior Counsel further contended that P.W.19 – Mahesh Kumar, who is also a panch witness, has deposed that a notice Ex.P.23 was issued to him to appear as panch witness to the mahazar and accordingly, he has put his signature as per Ex.P.23a. Police had taken him to ACB Office and then near 3rd Main Road, 3rd cross, near Milk Booth, Sanjaynagar. At that time, accused No.1 – Ravikumar, accused No.2 – Ashwath, accused No.3 Chethan also had come along with the Police. From Sanjaynagar Milk Booth, they took them to Sanjana’s house. They asked accused No.1 –Ravicharan to give the receipt of Muthoot Finance. The accused took them to Muthoot Finance where the Manager – Anand Shetty showed a pair of bangle-M.O.18, one chain – M.O.25, one bracelet – M.O.17, to them and gave one brown colour cover – M.O.51 and the police drew the panchanama and seized the material objects. He has seen the seizure panchanama – Ex.P.24 and his signature is at Ex.P.24a. On the next day, accused Nos.1 to 3 took them to Mahadevapura. Accused No.3 - Chethan showed 28 the B.P.Aparatus and the police drew the seizure panchanama as per Ex.P.25 and seized the material object-M.O.52. His signature is found at Ex.P.25a. From there accused Nos.1 to 3 lead them to Gudemaranahalli Hand Post where the material objects - a mobile phone, mobile pouch, purse and rope pieces were seized at the instance of the accused. In the purse there was a silver pedal, two one rupee coins which were seized by the police in their presence as per the seizure mahazar Ex.P.26 and he has put his signature at Ex.P.26a. Therefore, he contended that the evidence of P.W.19, who is panch witness to the seizure mahazars cannot be considered as independent and respectable inhabitant in view of the provisions of Section 100(4) of Cr.P.C.

24. The learned Senior Counsel would further contend that C.W.43 Charanachar is not examined before the Court. P.W.23 – Nageshwar Rao, who is a Pharmacist at Adarsh Medical Store, has deposed that at about 11.00 a.m. on 9.4.2010, he had last seen the doctor Sharath Kumar along with accused No.5, who had informed him that after seeing the patient, he would come back. But he did not come back. Thereafter, Smt. Deenamma – Nurse – P.W.24 29 informed him about 12.00 noon that Dr. Sharath Kumar has not yet returned. Therefore, he called Dr. Sharath Kumar over mobile who replied that he would come back at 5’ O clock, but he did not come back. So again he called the doctor, who informed that it would be late. The doctor did not come back on that day. At 7.30 p.m. the doctor called him and asked to go to Nirmal Jewellers shop where he would be given some jewels and to keep them with him. On that day, as per the instructions of Dr. Sharath Kumar, he went to Nirmal Jewelers shop where he was given a box of jewels by the owner, who had told him that there were six gold chains and four bracelets in the box. But he did not see them. When he called to the doctor to enquire, he informed him that one person by name Naveen would come and he has to hand over the box to him. At about 7.45 Naveen came to his shop. At that time, he called the doctor Sharath Kumar over phone, after enquiring with Naveen, as per the direction of Dr. Sharath Kumar, he gave the box to Naveen. He has also identified Naveen in the Test Identification Parade conducted in the Central Prison, Parappana Agrahara, Bengaluru. Accordingly, the Tahsildar has prepared the report as per Ex.P.32 and he has put his signatures at Ex.P.32c and 32d. The Tahsildar 30 had informed him that the person, whom he had identified, was Bhushit and CCB police had recorded his statement.

25. In his cross-examination, P.W.23 has deposed that he did not know in which hospital the brother of the complainant was admitted and he had not told to the daughters of the complainant in the house. He has denied the suggestions that the doctor had not telephoned to him; he had not gone to Nirmala Jewelers and not brought the box; he is deposing falsely as he was running his shop by the side of the clinic; he has not gone to the Kunigal Hospital and has not seen the body of the deceased in the hospital; and he does not know anything in the case. He has further admitted the suggestion put by the learned Counsel for respondent No.4 that the persons going to the residence and coming from the residence on the staircase by the side of his shop will be seen by sitting in his shop and he has opened his shop on the date of the incident and was in his shop.

26. In the cross-examination by learned Counsel for accused No.5, P.W.23 has further deposed that one Nagalakshmi is running the Pharmacy on his license as she does not have license 31 and he is taking share in the income earned from pharmacy. He has admitted the suggestions that in order to help him, she is giving rent; So many of them come and go to his shop; He cannot identify all the customers; He can identify the customers, who often come and go and they usually come for purchasing medicines; Police had not called him to the police station between 9.4.2010 and 19.5.2010; Police had issued him a notice to come to the police station on 19.5.2010, but it is not produced. They three had gone together and the police called them one by one. No others had accompanied him. They themselves had gone and they were made to sit in the verandah in a line. At that time, the Tahsildar was also present. After drawing the report, they have signed the same. In the Test Identification Parade, they asked to identify the person, who had taken the jewels and they had identified the person. The person who had his name as Naveen was a different person. He had shown the person, who had taken the jewels from him, but it was told by the Tahsildar that his name was Bhushit. He himself had gone to the jewelers shop. Since so many years, he was having the acquaintance with the people of the jewelry shop. They did not give any receipt, but one small slip was given. He does not 32 know the matter and how much gold was there. They told that there were 10 items of jewels and at that time, he had seen the jewelry items. Earlier, he had not taken the jewels from the shop and on the confidence of the doctor, they had given the jewelry box. He has admitted the suggestions that the notice was issued to him on 10.5.2010 specifying the names of the accused; the name of Bhushit was at serial No.5; He has identified same as D.W.2 and he has put his signature as D.W.2a on 10.5.2010; as per the direction of the police, he has identified the accused and the witness volunteers that he has not identified the accused as per the say of the police, but he himself had identified voluntarly; he has not put his signature in the jewelery shop; and it was for the first time that he had brought the jewels from the shop. Further he has denied the suggestion that he has identified the accused as per the say of the police and that he has signed all the documents in the police station. Therefore, he contended that the evidence of P.W.23 creates doubt about handing jewellery at 7.30 p.m. to him by P.W.2. But according to P.W.2, he has deposed that he had handed over to one Nagendra. However, according to P.W.23, he deposes that he had collected the jewels and he knew the jeweler for many 33 years. Admittedly, the Nirmal Jewellers is close by to his Pharmacy about 270 meters approximately. As such, this aspect has not been considered by the learned Sessions Judge while analyzing the evidence on record and hence, his evidence is not trustworthy for conviction of the accused No.5.

27. The learned Senior Counsel further contended that P.W.24 Deenamma-Nurse has deposed that she knew the Dr. Sharath Kumar and she usually works in the clinic between 10.00 a.m. and 6.00 p.m. On 9.4.2010, in the morning at 10.00 Dr. Sharath Kumar had come to the clinic and while he was examining the patients, at about 11.30 a.m. a boy aged about 25 years came and requested the doctor to come along with him to see the patient to his house. Accordingly, the doctor accompanied him. On that day, the doctor went in a white Quallis car. She has further deposed that she had seen the person who had taken the doctor and she identifies him as Bhushit-accused No.5 and the name of the driver as Kumar – accused No.6. The Tahsildar, who conducted the Test Identification Parade submitted the report as per Ex.P.32. 34

28. The learned Senior Counsel further submitted that the Test Identification Parade was not conducted by the police in terms of the Karnataka Police Manual - Order 1359 of Chapter XXXIII prescribe ‘Identification’ and it was conducted after a lapse of 40 days. He would further contend that the evidence of P.Ws.48, 51, 53 and 61, who are police officers, have spoken and produced the Call Details Records, which do not support the case of the prosecution in view of the provision of Section 65B of the Indian Evidence Act, since the said Call Details Records are not certified in order to prove the authenticity of the same and therefore, the same cannot be relied upon. He also contended that the prosecution has not proved the circumstances with regard to motive, conspiracy, preparation, conduct of the accused prior to the incident, last seen circumstances and recovery of material objects. In the absence of any material documents as stated supra, the conviction of the accused cannot be sustained. He would further contend that the entire case is based on circumstantial evidence other than proving certain recoveries made on the basis of the statements made by the accused, the prosecution has failed to prove any other circumstances like motive, conspiracy, preparation, conduct prior to 35 the incident, last seen circumstance, circumstances relatable to the period between abduction and murder, conduct immediately after the incident, extra judicial confession, expert evidence (forensic) and digital evidence etc. The circumstances when cumulatively taken do not form a chain so complete to reach a conclusion that within human probability, the crime in question was committed by the accused and none else.

29. The learned Senior Counsel further contended that the recoveries are based on voluntary statement of the accused which cannot be the sole basis for conviction and cannot be accepted. The conviction is based mainly on suspicion and not on the basis of proof beyond all reasonable doubt. The suspicion, however, strong cannot take the place of proof. As such there is a failure of dispassionate judicial scrutiny of law and facts in the present case and the learned Sessions Judge has failed to note ‘fouler the crime, higher the proof’.

30. The learned Senior Counsel further contended that the Test Identification Parade as per Ex.P.32 has not been proved and is full of discrepancy in so far as accused No.6 is concerned. The 36 conviction of accused No.6 for the charges which were not framed against him is illegal and cannot be sustained. He further contended that as there is illegality in recording the statement of many of the accused under Section 313 of the Code of Criminal Procedure, the judgment of conviction and order of sentence is liable to be set aside on this ground alone.

31. The learned Senior Counsel further contended that the entire investigation was conducted by the CCB and P.W.65 the Investigating Officer has filed the final report, but CCB is the not police station which can file the final report as held by the Hon’ble Supreme Court in the case of State of Bihar and Another –vs- Lalu Singh reported in (2014) 4 SCC663 32. The learned Senior Counsel further contended that the accused cannot be convicted for major charge though he is charged for minor offence. The learned Sessions Judge while recording the statement of the accused under Section 313 Cr.P.C has put: question No.128 pertaining to accused-1 was put to accused No.7, question No.130 pertaining to accused-2 was put to accused No.7, 37 question No.132 pertaining to accused-4 was put to accused No.1; question No.134 pertaining to accused-6 was put to accused No.7; question No.135 pertaining to accused-7 was put to accused No.1; question No.137 pertaining to accused-5 was put to accused No.1; question No.139 pertaining to accused-3 was put to accused No.1; question No.149 pertaining to accused-1 was put to accused No.1. While recording the statement of accused No.2 under Section 313 Cr.P.C., question Nos.82 to 89 were left blank; so also in respect of accused No.6, question Nos.28 to 30 were left blank. As such, he contended that the very initiation made by the prosecution and questions putforth to the accused are contrary to the material on record and cannot be sustained.

33. The learned Senior Counsel further contended that the memo dated 3.9.1971 produced by the respondent-State is not the notification issued by the Government in exercise of any statutory power. He would further contend that in view of the provisions of Section 2(s) of the Code of Criminal Procedure, the CCB is not a police station. He would further contend that P.W.65, the 38 investigating officer has not initially registered a case and the charge sheet filed is not in accordance with law.

34. The learned Senior Counsel would further contend that in view of the provisions of Section 154(1) of the Code of Criminal Procedure, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. He would further contend that in view of the provisions of Sub-Section(3) of Section 154 of the Code of Criminal Procedure any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall 39 either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. Therefore it is the contention of the learned Senior Counsel for the accused that the said provisions are not applicable to the facts and circumstances of the present case.

35. The learned Senior Counsel for the accused would further contend that, the Officer are called the in-charge Officer of the police station; any irregularity whether it vitiates the proceedings; competency of the jurisdiction under Section 173(3) of the Code of Criminal Procedure and under Section 156(2) of the Code of Criminal Procedure to investigate does not mean that he is empowered to file a report. The learned Senior Counsel would further contend that though the ACP of CCB is entrusted to conduct the proceedings as per the memo dated 12.4.2010 by the Commissionerate of Police, he was not authorised to file the final report. 40

36. The learned Senior Counsel further contended that though the provisions of Section 190(1)(b) of the Code of Criminal Procedure comes into picture, under the provisions of Section 461(k) of the Code of Criminal Procedure, if the Magistrate takes cognizance of an offence under Clause (c) of Sub-Section (1) of Section 190, the proceedings shall be void. The learned Senior Counsel further referred to the provisions of Sections 102 and 149 of the Code of Criminal Procedure of Chapter XI and relying upon the provisions of Section 32 of the Code of Criminal Procedure contended that Sub-Section (1) refers to ‘Mode of conferring powers’ and the High Court or the State Government, in conferring powers under this Code, as the case may be, may, by order, empower persons specially by name or in virtue of either offices or classes of officials generally by their official titles and Sub-Section (2) refers that every such order shall take effect from the date on which it is communicated to the person so empowered. The learned Senior Counsel further referred to Sections 2(o), (r) and (s) of the Cr.P.C., which define the words ‘the Officer in charge of a police station’, ‘police report’ and ‘police station’ and therefore, he contended that the ACP of CCB has no power to file final report and 41 accordingly, the proceedings initiated is vitiated. He further contended that in view of the provisions of Section 156(2) of the Cr.P.C., no proceeding of a police officer, in any such case, shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate and under sub-section (3), any Magistrate is empowered under Section 190 Cr.P.C., may order any officer in charge of a police station to investigate any cognizable case.

37. The learned Senior Counsel further referring to the Karnataka Police Manual, Chapter-II of Order 30, contended that ‘Commissionerates’ are created by the Government; Chapter LII of Order 2040 prescribes the jurisdiction of the Bangalore City Police Commissionerate; Order 2055 refers to Duties of Assistant Commissioners of Police of Sub-Divisions; Order 2058 refers to Police Stations; Order 2061 refers to City Crime Branch-CCB and functions of four different squads in CCB; He further contended that under Chapter XII of the Code of Criminal Procedure deals with ‘Information to the police and their powers to investigate’ and Section 154 deals with the information in cognizable cases, Section 42 156 deals with the Police Officer’s power to investigate cognizable case without any order of a Magistrate; Section 157 deals with the procedure for investigation; Section 158 prescribes how the report has to be submitted; Section 169 prescribes how the accused has to be released when the evidence is deficient; Section 170 prescribes the cases to be sent to Magistrate when the evidence is sufficient; Section 173(2) prescribes how the Police Officer has to forward the report on completion of investigation in the form prescribed by the State Government; Section 174(3) prescribes how the police has to inquire and submit the report on suicide, etc.

38. In support of his contentions, the learned Senior Counsel relied upon the following dictums of this Court and the Hon’ble Supreme Court: i) State –vs- Thammaiah and Others Reported in 2000(3)3 KLJ293paragraphs-3, 5, 7, 9 and 13; ii) State of Bihar and Another –vs- Lalu Singh reported in 2014(4) SCC663paragraph-11; 43 iii) N. Rajachar and Others –vs- Sri Kodandarama and Others reported in ILR2002Kar. 2909 –paragraph-20 -provisions of Section 156(3) Cr.P.C; iv) Rakesh Shetty –vs- State of Karnataka and Others in Writ Petition No.11169/2020 D.D. 5th November, 2020 regarding point for determination that whether CCB is Police Station – paragraphs- 11.1 ; Regarding CCB is not a police station paragraphs 11.4. 11.8, 11.11; v) Dr. M.G. Gopal –vs- State and Others in Criminal Revision Petition No.34/2008 and connected case, paragraphs-5, 8, 9, 12, to 15, 17 and 18; Paragraphs-16 and 23 – powers of CCB vi) Zuari Cement Limited –vs- Regional Director, Employees’ State Insurance Corporation, Hyderabad and Others reported in (2015) 7 SCC690 paragraph-14; vii) A.R. Antulay –vs- R.S. Nayak and Another reported in (1988)2 SCC602paragraphs-85 and 91.

39. Sri Hashmath Pasha, learned Senior Counsel appearing for accused No.5 while replying to the arguments advanced by the learned Additional SPP with regard to ACP of CCB relying the dictum 44 of the Hon’ble Supreme Court in the case of H.N. Rishbud –vs- State of Delhi reported in AIR1955SC196particularly paragraph-17 contended that the Officer in-charge of the Police Station can take cognizance even though the provisions of Section 156 of Cr.P.C., empowers an Officer in charge of a police station to investigate a cognizable case without the order of a Magistrate and delimits his power to the investigation of such cases within a certain local jurisdiction. He further contended that under the provisions Section 173(2)(i) and (8) of Cr.P.C., the Officer in charge of the police station can forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. He further referred to the definition of ‘police report’ under the provisions of Section 2(r) of Cr.P.C., to contend that it is a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173; Section 2(o) with regard to ‘Officer in charge of a police station’; Section 2(s) with regard to ‘Police Station’ and powers of the authorities under the provisions of Section 36 Cr.P.C. 45

40. Sri Sandesh Chouta, learned Senior Counsel appearing for some of the accused persons contended with regard to powers of the CCB., Section 4 of the Karnataka Police Act, 1963 prescribes the ‘Superintendence of Police Force to vest in the Government:- the superintendence of the Police Force throughout the State vests in and is exercisable by the Government and any control, direction or supervision exercisable by any officer over any member of the Police Force shall be exercisable subject to such superintendence. Section 5 of the said Act prescribes ‘Constitution of Police Force’ – subject to the provisions of the Act, (a) the Police Force shall consist of such number in the several ranks and have such organization and such powers, functions and duties as the Government may by general or special order determine.

41. In support of his contentions, Sri Sandesh Chouta, learned Senior Counsel relied upon the dictum of the Hon’ble Supreme Court in the case of Sakiri Vasu –vs- State of Uttar Pradesh and Others reported in (2008) 2 SCC409particularly paragraphs 11 and 25 which reads as under:

46. “11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the 47 High Court to file a writ petition or a petition under Section 482 CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 CrPC before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3).

42. With regard to entrustment of powers to CCB, the learned Senior Counsel relied upon The Delhi Special Police Establishment Act, 1946 wherein Section 2 deals with Constitution and powers of Special Police Establishment and Sub-section (3) which prescribes Any member of the said police establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in any Union territory any of the powers of the officer in charge of a police station in the area in which he is for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in charge of a police station 48 discharging functions of such an officer within the limits of his station. The learned Senior Counsel further referring to Section 3(3) of the National Investigation Agency Act, 2008 contended that Any officer of the Agency of, or above, the rank of Sub- Inspector may, subject to any orders which the Central Government may make in this behalf, exercise throughout India, any of the powers of the officer-in-charge of a police station in the area in which he is present for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station.

43. The learned Senior Counsel further referring to Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 contended that it envisages Power to invest officers of certain departments with powers of an officer-in-charge of a police station - (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, 49 customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.

44. The learned Senior Counsel further referring to Cyber Crime Division, CID, Karnataka contended that the Cyber Crime Cell was started at Criminal Investigation Department (CID) Headquarters, Bangalore to deal with Cyber Crimes vide Government Notification No.HD173POP99dated 15.10.1999, with one Deputy Superintendent of Police and four Police Inspectors along with supporting staff. The Cyber Crime Cell was declared as Cyber Crime Police Station vide Government Notification No.HD173POP99 dated 13th September, 2001. It was duly notified in the Karnataka Official Gazette, video Part IV-A No.1840, on 22nd October, 2001 and from then it started functioning. He further contended that the Government of Karnataka vide Notification dated 8.5.2002 bearing No.HD292PEG2000in exercise of the powers conferred by clause (s) of Section 2 of the Code of Criminal 50 Procedure, 1973 (Central Act 2 of 1974) and in suppression of all the Notifications issued in this behalf, the Government of Karnataka hereby declared the places specified in column (2) of the table below as Police Stations and specifies the local areas mentioned in the corresponding entries in column (3) thereof as local areas included within those Police Stations. GOVERNMENT OF KARNATAKA No.HD292PEG2000KARNATAKA GOVERNMENT SECRETARIAT VIDHANA SOUDHA, BANGALORE, DATED0805.2002 NOTIFICATION In exercise of the powers conferred by clause (S) of Section 2 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and in suppression of all the Notifications issued in this behalf, the Government of Karnataka hereby declares the places specified in column (2) of the table below as Police Stations and specifies the local areas mentioned in the corresponding entries in column (3) thereof as local areas included within those Police Stations. TABLE Sl. Name of the Police Stations Local Areas No.included within the police stations specified in column (2) (1) (2) (3) 1 Office of the Additional Director Whole of the General of Police, Police Wing, State of Karnataka Lokayuktha, Bangalore Karnataka 51 2 Office of the Deputy Inspector Whole of the General of Police, Police wing, State of Karnataka Lokayuktha, Bangalore Karnataka 3 Office of the Superintendent of Areas within the Police, (1) Police Wing, Karnataka jurisdiction of Lokayuktha, City Division the Bangalore Commissioner of Police, Bangalore City X Xxxxxxxx Xxxxxx X Xxxxxxxx xxxxxxx 45 Office of the Police Inspector, Gadag District Police Wing, Karnataka Lokayuktha, Gadag, 46 Office of the Police Inspector, Haveri District Police Wing, Karnataka Lokayuktha, Haveri 47 Office of the superintendent of Gulbarga, Police, Police Wing, Karnataka Raichur, Koppal Lokayuktha, Gulbarga Division and Bidar Districts 48 Office of the Deputy Gulbarga and Superintendent of Police, Police Bidar Districts Wing, Karnataka Lokayuktha, Gulbarga Division 49 Office of the Deputy Raichur and Superintendent of Police, Police Koppal Districts Wing, Karnataka Lokayuktha, Raichur Division 50 Office of the Police Inspector, Gulbarga Police Wing, Karnataka District Lokayuktha, Gulbarga excluding Yadgir, Shahapur, Sedam and Shorapur Taluks 51 Office of the Police Inspector, Yadgir, Police Wing, Karnataka Shahapur, Lokayuktha, Yadgir Sedam and Shorapur (Surpur) taluks in the Gulbarga District 52 Office of the Police Inspector, Bidar District Police Wing, Karnataka 52 Lokayuktha, Bidar 53 Office of the Police Inspector, Raichur District Police Wing, Karnataka Lokayuktha, Raichur 54 Office of the Police Inspector, Koppal District Police Wing, Karnataka Lokayuktha, Koppal BY

ORDER

IN THE NAME OF THE GOVERNOR OF KARNATAKA Sd/- (R. RANGAMANI) UNDER SECRETARY TO GOVERNMENT, HOME & TRANSPORT DEPARTMENT (POLICE SERVICES)” Therefore, he sought to allow the criminal appeals filed by accused Nos.1 and 6.

45. Sri M.R. Nanjunda Gowda, learned Counsel for accused No.2 in Criminal Appeal No.1976/2018 while adopting the arguments advanced by the learned Senior Counsel – Sri Hashmath Pasha and Sri Sandesh Chouta contended that the police officers are required to call upon some independent and respectable people of the locality to be the witness. When local panch witnesses are available, witness from other places in support of the prosecution cannot be relied upon. He further contended that on the basis of the voluntary statement of accused No.1, accused No.2 has been implicated as admitted by P.W.65 – Investigating Officer, who, in 53 his cross-examination has admitted that he had arrested accused No.2 on the basis of the information given by accused No.1. Except the voluntary statement of accused No.1, there is no other information or overtacts attributed against accused No.2 in the alleged offence and he would not have identified the two mobiles recovered from accused No.2; when they are not standing in the name of accused No.2. The investigating officer has further admitted that he had seized 18 notes of denominations of Rs.500 but has not written the numbers mentioned on the notes. He has further admitted that after seizure of gold ornaments, he has not packed them in a cover, sealed and taken the signature of accused No.2, but after seizure, he has drawn the seizure mahazar and has obtained the signatures of the panch witnesses; the gold ornaments – bangles, chain recovered from the accused were not examined by the gold smith as to whether it was true or not; these gold ornaments might be available in the market also. As such, he contended that entire seizure of material objects at the instance of accused No.2 becomes doubtful and cannot be relied upon. 54

46. The learned Counsel further contended that in order to prove the seizure of gold ornaments and material objects appraiser is not examined. Even as could be seen from the evidence of P.W.23 and 48-Nodal Officer, P.W.65-investigating officer, no overtacts are attributed against accused No.2. P.W.33, who is the room mate of accused No.2 has turned hostile to the case of the prosecution. Therefore, he contended that when there is no material against accused No.2 to prove that he is involved in the alleged offence, conviction of accused No.2 cannot be sustained and accordingly, he sought to allow the criminal appeal filed by accused No.2.

47. Sri P. Prasanna Kumar, learned Counsel appearing for accused No.7 in Criminal Appeal No.1659/2018 while adopting the arguments advanced by Sri Hasmath Pasha, learned Senior Counsel for accused No.5 contended that as could be seen from the evidence of P.Ws.17, absolutely there is no material against accused No.7, who has been implicated in the alleged offence unnecessarily. He has deposed that the mobile recovered from accused No.7 belongs neither to her nor to her brother, who has 55 not been examined. He further contended that the while recording the statement of accused No.7 under Section 313 Cr.P.C., all the questions are left blank and signed on 8.12.2017 as per the certified copy received by him on 18.9.2018. This Court by the order dated 21.2.2019 on the application filed by accused No.5 on I.A.1/2019 under Section 482 Cr.P.C., directed the Registrar (Vigilance) to conduct thorough enquiry into the subject matter and place a report before this Court. The enquiry shall engulf the manner in which the certified copy furnished by the trial Court as well as by this Court, the persons responsible for issuing both these certified copies as well as the signature of the relevant accused on their respective 313 statement and all such matters relatable to the issues on hand. Further the Registrar (Vigilance) shall submit a report as expeditiously as possible. Therefore, he contended that the conviction of accused No.7 is not sustainable and is liable to be set aside.

48. In support of his contentions, the learned Counsel for accused No.7 relied upon the following dictums of the Hon’ble Supreme Court:

56. i) Vijay Kumar –vs- State of Rajasthan reported in (2014) 3 SCC412particularly paragraph 15.4 with regard to recoveries made from the house where families are residing, the accused cannot be said to be in exclusive possession of the articles; ii) Dhan Raj –vs- State of Haryana Reported in (2014) 6 SCC745particularly paragraphs-13 and 14 where it is held that it is not safe to draw an inference that recovery of articles cannot indicate the commission of murder when recovery of an object does not amount to discovery of fact; iii) Ashish Jain –vs- Makrand Singh & Others Reported in (2019) 3 SCC770Particularly paragraphs- 27 and 28 wherein it is held that to prove that ornaments recovered were in fact the ones which were robbed, proper procedure has to be followed – identification must be done by mixing recovered jewellery with similar or identical ornaments; 57 iv) Sonvir @ Somvir –vs- State (NCT of Delhi) Reported in (2018) 8 SCC24paragraphs-26.1 to 26.3 wherein it is held that the prosecution must prove the exclusive possession of jewellery and cash recovered from accused, but no explanation was given in the statement recorded under Section 313 Cr.P.C. where independent witness does not identify the jewellery; v) Bharama Parasram Kudhachkar –vs- State of Karnataka Reported in (2014) 14 SCC431Paragraphs-9 and 10 wherein the accused were acquitted when ornaments recovered were of common use and were produced only in Court for identification; vi) Sujit Biswas –vs- State of Assam Reported in (2013) 12 SCC406Particularly paragraph-20 wherein it was held that Section 313 Cr.P.C. to meet the requirement, the principle of natural justice – circumstances where not put to accused 58 in 313 Cr.P.C., and the same cannot be used against the accused; vii) State of Uttar Pradesh –vs- Raghuvir Reported in (2018) 13 SCC732Particularly paragraph -11 wherein it was held that when object of Section 313 of Cr.P.C. is to put circumstance against accused so that accused can meet the case of the prosecution – circumstances which are not put to accused in 313 cannot be used against the accused; viii) Sangaraboina Sreenu –vs- State of A.P. Reported in (1997) 5 SCC348Particularly paragraph No.2 – when Charge is framed for minor offence and not for major offence, conviction of accused cannot be unsustainable.

49. Sri Shashidhara, learned Counsel appearing for accused Nos.3 and 4 in Criminal Appeal Nos. 1937/2018 and 1960/2018 contended that there was a delay of 36 hours in lodging the complaint as per Ex.P.2 which is not explained by the prosecution; 59 the evidence of P.Ws.1 and 3 are inconsistent; and as there is suppression of the first information by the prosecution, the same is hit by the provisions of Section 162 of Cr.P.C. In support of his contentions, he relied upon the dictum of the Hon’ble Supreme Court in the case of State of Andhra Pradesh –vs- Punati Ramulu reported in 1993 AIR (SC) 2644 particularly paragraph-5. He would further contend that P.W.24 – Deenamma Nurse has not identified accused No.4 in the test identification parade and hence, his involvement in the alleged offence is not proved by the prosecution and as such, conviction of accused No.4 cannot be sustained. He would further contend that the prosecution witnesses P.W. 18 – panch witness for mahazars and P.W.19 – panch witness for recovery mahazar have deposed that when they went to the house of accused No.3 one woman and man were present, but the police have neither enquired anything about them nor have recorded their statement in presence of P.W.18 and also of Chethan. He has deposed that he was not aware whether the police had requested the adjoining owners of the house of Chethan to be present as panch witnesses; also not aware whether the police while seizing the ornaments from the almirah have taken the 60 photograph or videographed, but have drawn the spot mahazar Ex.P.2; not aware, who had written the same in the house of chethan though he was present; not aware whether the police have obtained the signatures of the inmates in the house of Chethan. He has further deposed that on the next day, the police had taken accused Nos.1 to 3 to Mahadevapura. Accused No.3 Chethan showed the B.P.Aparatus; the police drew the seizure panchanama as per Ex.P.25 and seized the material object-M.O.52. His signature is found at Ex.P.25a. From there accused Nos.1 to 3 lead them to Gudemaranahalli Hand Post where a mobile phone, mobile pouch, purse, and rope pieces were seized at the instance of the accused. In the purse there was a silver pedal and two one rupee coins were found, which were seized by the police in their presence and seizure mahazar Ex.P.26 was drawn. He has put his signature at Ex.P.26a. Even from the evidence of P.Ws.21 and 33, it is clear that they have identified accused Nos.3 and 4, but the test identification parade was not properly conducted. Though the entire case of the prosecution is based on the circumstantial evidence, the same has not been proved against accused Nos.3 and 4 and 61 therefore, he sought to allow the criminal appeal filed by accused Nos.3 and 4.

50. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor contended that in view of identification of accused No.4 – Shiva Prathap P.W.1, the person who took the jewels from her house in the test identification parade, the material objects – M.Os.1 to 5 – Diamond Ring, Ring, Janivara, Wrist Watch and Golden Thaitha, M.O.55 half burnt valet, M.O.55 cell phone, M.O.52 B.P. Apparatus, and M.O.58 silver paduke; and P.W.23 – Nageshwara Rao – pharmacist identifying accused No.5 – Bhushith who had collected the jewellery box from him in the test identification parade, the learned Sessions Judge was justified in convicting accused Nos.4 and 5. He would further contend that as P.W.19 – Mahesh Kumar, is the panch witness to Ex.P.24 the recovery mahazar from Muthoot Finance for seizure of bracelet M.O.17 and gold chains M.Os.18 to 27 and also to Ex.P.25 for seizure of B.P. apparatus – M.O.52 at the instance of accused No.3 and Ex.P.26 – the seizure mahazar for seizure of mobile phone – M.O.53, mobile pouch – M.O.54, purse – M.O.55, two one rupee 62 coins M.Os.56 and 57, Two silver coins M.Os.58 and 59, pieces of rope M.O.60, Ash – M.O.61, mud – M.O.62, stethoscope M.O.63 at the instance of accused Nos.1 to 3, the impugned judgment of conviction passed by the learned Sessions Judge against accused Nos.1 to 3 is just and proper and needs no interference. Even M.Os.55, 56, 57 and 58 were identified by P.W.1 - the wife of the deceased and M.O.63 by P.W.23, the prosecution has proved its case beyond reasonable doubt regarding involvement of accused Nos.1 to 3 in the homicidal death of the deceased. He would further contend that as per the evidence of P.W.12 – Ravi Upadyaya, who is the panch witness to Ex.P.11 the seizure mahazar for recovery of Maruthi Car – M.O.38 at the instance of accused Nos.1 and 2 from the parking area of KSRTC Bus Stand and seizure of knife from the car M.O.37 would also prove the involvement of the accused in the offence as alleged by the prosecution.

51. Further with regard to CCB is not a police station the learned Additional SPP relied upon the dictum of the Hon’ble Supreme Court in the case of H.N. Rishbud and another –vs- State of Delhi reported in AIR1955SC196particularly 63 paragraph-19. Further relying upon the provisions of Section 465 Cr.P.C., contended that it includes investigation; Section 158 Cr.P.C. prescribes how the report has to be submitted to the Court; Section 2(r) of Cr.P.C., defines what ‘Police Report’ which means a report forwarded by a police officer to a Magistrate under Sub- section (2) of Section 173 – an officer in charge of a police Station. Further he referred to the Memo dated 12.4.2010 issued by the Commissioner of Police, Bangalore City transferring the investigation of Sanjaynagar Police Station i.e., Crime No.101/2010 under Section 364(A) of IPC to Assistant Commissioner of Police, Special Enquiries Squad, CCB, Bangalore City to contend that the CCB had the power to conduct investigation in the present case and as such, the proceedings are not vitiated.

52. The learned Additional Advocate General submitted that this Court by the order dated 1.2.2021 taking into consideration the seriousness of the case had asked the State Government to answer the following aspects: i) As to how, the CCB Police investigated the matter and filed the report?. 64 ii) With regard to recording of statement under Section 313 of the Code of Criminal Procedure by the learned Sessions Judge; iii) With regard to Section 65B of the Indian Evidence Act; iv) Marking of portions of voluntary statements of Accused Nos.1 and 2; and v) Though the accused were charged for the lesser offence, they were convicted for the higher offence.

53. Accordingly, the learned Advocate General argued on the aforesaid aspects and contended that in view of the provisions of Sub-clause (i) of section (2) of Section 173 of the Cr.P.C., ‘Report of police officer on completion of investigation’ means as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government containing the names of the parties; the nature of the information; the names of the persons, who appeared to be acquainted with the circumstances of the case; whether any offence 65 appears to have been committed and, if so, by whom; whether the accused has been arrested; whether he has been released on his bond and, if so, whether with or without sureties; whether he has been forwarded in custody under Section 170; whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376B, 376C (Section 376D or Section 376E) of the IPC. Further the learned Advocate General contended that Chapter XIV of Cr.P.C. imposes conditions requisite for initiation of proceedings and the provisions of Section 190(1)(b) of Cr.P.C., prescribes that subject to the provisions of this Chapter, any Magistrate is empowered to take cognizance of offences upon a police report of such facts. The learned Advocate General further contended that in view of the provisions of Section 36 of Cr.P.C., envisages the powers of Superior Officers of Police, the ACP of CCB is the superior police officer in rank to an officer in charge of a police station and he can exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. Therefore, the ACP of CCB by the order dated 12.4.2010 is entrusted to conduct investigation and he has stepped 66 into the shoes of the police officer in charge of the police station and as such, he can very well file the final report.

54. The learned Advocate General further contended that in view of the memo dated 12.4.2010 issued by the Commissioner of Police, Bangalore City, the investigation of Sanjaynagar Police Station in Crime No.101/2010 was entrusted to the Assistant Commissioner of Police, Special Enquiries Squad, CCB, Bangalore City immediately for taking over further investigation of the case and to file the final report in accordance with law. Accordingly, the ACP of CCB after investigation has filed the report in accordance with law and the jurisdictional Magistrate has taken cognizance of the same under Section 190 of Cr.P.C. The learned Advocate General further contended that even assuming the contention of the learned Counsel for the accused that the report submitted by the ACP of CCB is invalid, the same would not vitiate the proceedings already initiated, unless any prejudice caused to them is shown by the accused persons.

55. The learned Advocate General further contended that the Court has to keep in mind the victim and the society. When the 67 learned Counsel for the accused has not disputed the fact that the ACP of CCB can investigate the case, the only dispute is filing of final report which is not in accordance with law. Merely filing a report is an administrative act and the same will not in any way prejudice the case of the accused persons. The learned Advocate General further contended that the definition of ‘Investigation’ under Section 2(h) of Cr.P.C., includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate), who is authorized by a Magistrate in this behalf. Further Section 2(o) of Cr.P.C. states that ‘Officer in charge of a police station’ includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present. As such, it includes ACP of CCB in view of the memo dated 12.4.2010 issued by the Commissioner of Police, Bangalore City. 68

56. The learned Advocate General further contended that in view of the definition of Section 2(r) of Cr.P.C., the ‘Police report’ means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173 of Cr.P.C. Therefore, filing of final report by ACP of CCB will not vitiate the proceedings and as such, the learned Magistrate has rightly taken the cognizance, conducted the proceedings and after trial, the learned Sessions Judge has convicted the accused for the offences punishable under Sections 342, 364A, 302, 201, 120B r/w 34 of IPC. Consequently, the ACP of CCB has stepped into the shoes of the Officer in charge of the police station and he has got every power to file the final report.

57. The learned Advocate General further contended that when the conduct of investigation by the ACP of CCB was not disputed, mere filing of final report will not prejudice the case of the appellants-accused and there is no bar for filing the same in accordance with the law stated supra. The learned Advocate General further contended that at the initial stage, when the final report has not been questioned, it cannot be challenged before this Court in an appellate jurisdiction. 69

58. The learned Additional SPP has filed the written submissions on behalf of the State contending that though some of the accused were charged with minor offences and in the absence of charge against all the accused for major offences, all the accused could not have been convicted and sentenced for major offences. To rebut the said argument, the learned Additional SPP relied upon the dictum of the Hon’ble Supreme Court in the case of Sanichar Sahni –vs- State of Bihar reported in (2009)7 SCC198and Firozuddin Basheeruddin and Others –vs- State of Kerala reported in (2001)7 SCC596 With regard to improper recording of statement of the accused under Section 313 of Cr.P.C., or non compliance of the mandatory provision of Section 313 Cr.P.C., he relied upon the dictum of the Hon’ble Supreme Court in the case of Nar Singh –vs- State of Haryana reported in AIR2015SC310particularly paragraph-15 wherein it was held that when the accused were examined under Section 313 Cr.P.C., the essence of accusation, particularly the possession of goods was not brought to their notice. It was also noticed that the possibility of the accused persons being labourers of the truck was not ruled out by evidence. As such, it was held that the omission to put material 70 evidence to accused in course of examination amounts to non compliance of mandatory provision of Section 313 Cr.P.C., by the Trial Court and it would not entitle the accused for acquittal. The error committed by the Trial Court has to be corrected or rectified in appeal.

59. It is further contended that the accused cannot take advantage of any lapse on the part of the investigating officer or prosecution. In support of his contentions, the additional SPP relied upon the dictum of the Hon’ble Supreme Court in the case of C.Muniappan and Others –vs- State of Tamil Nadu reported in AIR2010SC3718 He further contended that to prove motive is very difficult as it is hidden in the mind of the accused. In the present case, though the witnesses, who were supposed to depose about the conspiracy and abduction committed by the accused, have turned hostile and as such, motive and conspiracy can be gathered from the circumstances which are as follows: i) The deceased making a phone call in the morning of 9.4.2010 to P.W.2 – Jeweler and asking him to handover certain gold jewels to his wife (P.W.1) and 71 P.W.2 handing over the same to P.W.1. The jewels were part of the recoveries effected at the instance of accused Nos.1, 2, 4, 5 and 7 and were subsequently identified by P.W.2 as four sets of necklace M.Os.6 to 9 and five bangales M.Os.10 to 14 as per the evidence of P.Ws.1 and 2; ii) The deceased making phone call to his wife – P.W.1 to collect the jewels from P.W.2 and handover the same to a boy. She has collected the same from P.W.2 and thereafter within 5 to 10 minutes, accused No.4 visited the house of P.W.1 and deceased to collect the said jewels and thereafter, the deceased making phone call in order to verify the same. P.W.1 has identified accused No.4 in the Test Identification Parade proceedings as per Ex.P.32 conducted during the investigation and even before the Court during trial, as the person, who collected the jewels from her in the morning of 9.4.2010; 72 iii) The deceased making a phone call to P.W.2 – Jeweler in the evening of 9.4.2010 and asking him to handover some more samples of gold jewels to Pharmacist – P.W.23 and as such, P.W.2 handing over some gold jewels in a box to P.W.23. The said jewels which were part of the recoveries effected/seized at the instance of accused Nos.1 to 5 and subsequently identified by P.W.2 as three gold bracelets – M.Os.15 to 17 and 10 gold chains – M.Os.18 to 27. The same is spoken to by P.Ws.2 and 23; iv) ON the same day evening at about 7.30 p.m., P.W.23 – Pharmacist receiving a phone call from the deceased asking him to visit the shop of P.W.2 and collect a jewellery box and handover the same to a person, who comes to collect the same. Accordingly, P.W.23 – Pharmacist going to the shop of P.W.2 and collecting the same and thereafter, handing over the same to accused No.5 – Bhushit (introducing himself 73 as Naveen to P.W.23) who had come to collect it. P.W.23 has identified accused No.5 in the Test Identification Parade Proceedings as per Ex.P.32 conducted during the investigation and even during the trial before the Court , as the person who collected the box of jewels from him, but by introducing himself as Naveen in the evening of 9.4.2010; v) The mobile phone of the deceased came to be switched off from the evening of 9.4.2010 after accused No.5 collected the box of jewels from P.W.23; vi) The body of deceased found in the morning of 10.4.2010 within the limits of Amruthur Police Station, Kunigal Taluk, Tumkur District at about 8.30 a.m. which was later on identified by P.W.1 and others; 74 vii) Though the gold jewels recovered at the instance of accused Nos.1 to 5 and 7 were identified by P.W.2 – Jeweler, who had taken them to his custody later by Court order, none of the appellants-accused nor any of their family members have claimed the said recovered gold jewels as belonging to them; even the seized gold jewelries were recovered from the almiras in presence of other family members in the house. It is to be noted that in the cross- examination of the panch witnesses and investigating officer, it is deposed that the said almiras were being used by other family members or that the gold jewelries belonged to them or that they might have been kept in the almiras.

60. In support of his contentions, the learned Advocate General relied upon the following dictums of the Hon’ble Supreme Court:- 75 i) R.P. Kapur and Others –vs- Sardar Pratap Singh Kairon and Others reported in AIR1961SC1117paragraphs-9 and 10; ii) State of Bihar and Another –vs- J.A.C. Saldanha and Others reported in AIR1980SC326paragraphs-5, 10 and 12; iii) The Registrar General –vs- Swamy Shraddananda @ Murali Manohar Mishra Criminal Referred Case 6/2005 c/w Criminal Appeal No.1086/2005 D.D.14/19th September, 2005 paragraph-38; iv) Central Bureau of Investigation –vs- State of Rajasthan and Others reported in AIR2001SC668paragraph-10; v) Vinubhai Haribhai Malaviya and Others –vs- State of Gujarath and Another reported in (2019)17 SCC1paragraph-29; vi) Fertico Marketing and Investment Pvt. Ltd. And Others –vs- Central Bureau of Investigation and Another reported in 2020 SCC online SC938paragraphs-18 and 19; 76 vii) R.A.H. Siguran –vs- Shankare Gowda Alias Shankara and Another reported in (2017)16 SCC126paragraphs-7, 8 and 9; viii) Pooja Pal –vs- Union of India and Others reported in (2016) 3 SCC135paragraphs-53 to 55; 61. The learned Additional SPP further contended that the absence of certificate as required under the provisions of Section 65-B of the Indian Evidence Act, is lapse on the part of the investigating officer, since the Nodal Officers of Telecom Service Companies examined as P.Ws.48, 51, 53 and 64 have clearly deposed that CDRs of mobiles have been issued on the request of the investigating officer as per Exs.P.54, 60, 63 and 81 respectively. As such, at best, it is an irregularity in not obtaining and producing the certificate is not fatal to the case of the prosecution.

62. The learned Additional SPP further contended that Ex.P.1 is just a missing report and Ex.P.2 is the complaint registered for the offence punishable under Section 364(A) of IPC which discloses the commission of a cognizable offence. P.W.1 has 77 explained the delay in lodging the complaint satisfactorily and hence, even if there is any delay in lodging the complaint, it cannot be said that it is fatal to the prosecution case.

63. In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the points that arise for our consideration in the present criminal appeals are: i) Whether the ACP of CCB is empowered to conduct day to day investigation in view of the memo dated 12.4.2010 issued by the Commissioner of Police, and consequently, whether he can file a final report or whether the entire proceedings culminating in conviction of the accused persons is vitiated?. ii) Whether the learned Sessions Judge was justified in recording the statement of the accused persons as contemplated under the provisions of Section 313 of the Code of Criminal Procedure leaving all answers blank to the questions put in respect of accused persons and signing the order sheet dated 8.2.2017 78 and particularly when all the answers to the questions put to accused No.7 are left blank in the certified copy obtained on 18.7.2018 in view of the provisions of Articles 21, 22 and 39A of the Constitution of India and Sections 313, 303 and 304 of Code of Criminal Procedure?. iii) Whether the trial Court was justified in convicting the accused persons for the offences punishable under sections 342, 364A, 302, 201 and 120B read with section 34 of IPC ignoring the oral and documentary evidence on record in the facts and circumstances of the present case?.

64. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record including the original records carefully.

65. This Court being the Appellate Court, in order to re- appreciate the entire material on record, it is relevant to consider 79 the evidence of the prosecution witnesses and documents relied upon:- (i) P.W.1 - Anjali Sarath, housewife of the deceased Dr. Sharath Kumar, who is the informant has deposed that she had lodged a missing complaint on 10.4.2010 at 11:30 a.m. as per Ex.P.1 and a case in crime number 101/2020 was registered as per the FIR Ex.P.79 by the PSI – P.W.65 Sanjayanagara Police Station. Again she lodged a second complaint on 11.4.2010 at 12.15 as per Ex.P.2 and FIR as per Ex.P.65 came to be registered in crime number 101/2010 registered by P.W.55 Shri Nagaraj under section 364A of IPC. She is a panch witness to the spot mahazar dated 11.4.2010 drawn at 9.15 to 10:15 p.m., at Aadarsh clinic near IBP petrol bunk, Geddalahalli, Bangalore as per Ex.P.3 spot mahazar. She has identified Shiva Prathap, accused No.4 in the test identification parade conducted on 19.5 2010 in Parappana Agrahara Jail as per Ex.P.32 report of the Tahsildar P.W.41 – Shivaswamy. She has also identified material objects- diamond ring, ring, janivara, wrist watch, golden thaitha - M.Os.1 to 5 on 25.4.2010 at 4 p.m. in Sanjay Nagar Police Station as per Ex.P.5 mahazar. She supported the case of the prosecution. 80 (ii) P.W.2 - Shailendra Kumar, who is the business man and owner of Nirmala Jewellers has deposed that he handed jewels to P.W.1 on 9.4.2010 at 11:45 a.m. and he has again handed over the gold ornaments to P.W.23 – Nageshwar Rao, Pharmacist of Adarsha Medical Store on 9.4.2010 at 7.30 p.m. He is the panch witness to material objects M.Os.6 to 27 – gold ornaments and has identified them on 25.4.2010 at CCB Office. He has estimated the bill marked as Exs.D.3 and 4 and there was no mismatch in so far as the eight of jewellery is concerned. Exs.D.3 and 4 were weighing 827.05, 572.51 + 254.54 gms., in terms of Exs.P.15, 16, 18, 19, 21, 22 and 24 mahazar for seizing material objects M.Os.6 to 27 based on the voluntary statement of various accused to which P.Ws.17 and 18 are the mahazar witnesses. He has supported the case of the prosecution. (iii) P.W.3 -Guruprashanth, who is the businessman and relative of the deceased has deposed that he had been to the Government Hospital, Kunigal and has identified the dead body of deceased. He has supported the prosecution case. 81 (iv) P.W.4 - G.U.K Holla, an Electrical Contractor has deposed that he is an old patient of Deceased and on 8.4.2010 he had telephoned to the doctor and told that he is not well. So the doctor had advised him to take tablets. Again on 9.4.2010 he called the doctor, and at that time, the doctor had told him to go to another doctor. (v) P.W.5 – Gangadaraiah, an Agriculturist and pancha witness to the seizure mahazar Ex.P.4 has deposed that on 10.4.2010 at 11:50 to 12:20 at Holeyarakatte, Kannaguni and Adonahalli Road, Kunigal Taluk the seizure mahazar was drawn as per Ex.P.4 and seized blood stained mud and sample mud, M.Os.28 and 29. He has supported the prosecution case. (vi) P.W.6 – Mallikarjunaiah, the Police Constable of Amruthahalli Police Station has deposed that he received certain articles of the dead body and delivered the same to the Inspector as per Ex.P.5. He has identified the material objects – shirt, baniyan, belt shoes and socks –M.Os.1 to 4 and 30 to 35. He has supported the prosecution case. 82 (vii) P.W.7 – Chikkalingaiah, an Agriculturist and panch witness to the seizure mahazar Ex.P.5 has deposed that on 10.4.2010 at 6 p.m. to 6:45 p.m. in Kunigal Circle Inspector Office the seizure mahazar was drawn and the material objects – M.Os.1 to 4 and 30 to 35 – shirt, baniyan, belt, shoes and socks were seized. He has identified them as belonging to the deceased and has supported the prosecution case. (viii) P.W.8 - Sheshadri Iyengar, a retired Government Employee has deposed that accused No.1 was his tenant in his building between the years 2008 and 2010 and he has not identified any of the articles allegedly seized at the instance of accused No.1 and he has turned hostile to the prosecution case. (ix) P.W.9 - Vikram Singh, an Electrician, has deposed that accused No.4 was his tenant in his building and he has not identified any of the articles allegedly seized at the instance of accused No.4 and has turned hostile to the prosecution case.. (x) P.W.10 - Josh Arul Bruto, a Businessman and witness to seizure mahazar has deposed that on 13.4.2010 at 5:15 to 5:35 at 83 House No.182, 4th cross, 2nd Main Road, K.V.K. Layout, Byadarayanapura at Bangalore, the seizure Mahazar was drawn as per Ex.P.8. He has further deposed that on 13.4.2010, the police have seized the material object – M.O.36 white Quails Car bearing registration No.KA-04-b-2568 at instance of accused No.6. He has supported the case of the prosecution. (xi) P.W.11 – Hanumantarayappa, an Agriculturist has deposed that accused No.7 was his tenant in his building, but has not identified any of the articles allegedly seized at the instance of accused No.7 and he has turned hostile. (xii) P.W.12 - Ravi Upadyaya, an Employee, who is the witness of seizure mahazar has deposed that on 13.4.2010 at 6.05 to 6.30, opposite to the Swathi Deluxe Hotel, KSRTC Bus Stand, Bangalore white Maruti Omni car was seized from KSRTC Bus Stop parking place at the instance of accused No.1 and accused No.2 as per Ex.P.11. He admits in his cross-examination that he does not know which were the materials objects police have taken out from the Omni Van and has supported the prosecution case. 84 (xiii) P.W.13 - Mallikarjun Channamal – who is the Lecturer in the Virendra Patil College has deposed that accused No.3 Chetan and accused No.5 Bhushit were studying BBM in his college in the year 2010 and on 10.4.2010 at about 10.30 pm in the night, they had taken all the BBM students of their college on trip to Ooty and Coimbatore. They had come back to Bangalore on 13.4.2010 at about 7.30 a.m. The Police had arrested them on the same day after their arrival to Bangalore from the bus itself. He has supported the prosecution case. (xiv) P.W.14 - Mohammad Anwar, an agriculturalist and complainant, has deposed that on 10.4.2010 that one male body was found near Holeyarakatte and he lodged a complaint as per Ex.P.12 and FIR as per Ex.P.66 and a case in Crime number 46/2010 came to be registered by Assistant Sub-Inspector of Police- Chandrashekhar P.W.56 of Amruthur Police Station. He has deposed that he is the witness for seizure mahazar which was drawn on 10.4.2010 at 11:50 to 12:20 at Holeyarakatte, Kannaguni and Adonahalli road, Kunigal Taluq as per Ex. P.4. He has supported the prosecution case. 85 (xv) P.W.17 - Harirao Sindhya, an employee and panch witness for seizure mahazars has deposed that on 13.4.2010 between 00.35 to 01.25 hours, he was taken to the house of accused No.1 Ravi Kumar where the material objects – M.Os.6, 7, 15, 18, 19, 20, 21, 38 and 39 were seized as per Ex.P.15; From there, he was taken to accused No.7-Sanjana, accused No.1 Ravikumar and and from there, all of them went to the house of accused No.2 Ashwath, where accused No.2 took one pair of bangle, a chain, Nokia and Reliance mobile handset and also an amount of Rs.9,000/- from the almirah i.e., M.Os.12, 13, 22, 42 to 44 which were seized as per Ex.P.18. From there, they were taken to the house of accused No.4 Shiva Pratap where the material objects – M.Os.14, 15, 23, 18, 45 and 46 – Nokia handset, Rs.9,000/- cash consisting of only Rs.500/- face value notes, a pair of bangle and a chain and the same was seized as per Ex.P.19. He has supported the case of the prosecution. (xvi) P.W.18–Sreeshaila, who is the real estate dealer and panch witness to the seizure mahazar Ex.P.21 has deposed that on 13.4.2010 at about 7.10 to 7.50 he was taken to the house of 5th 86 accused Bhushit at No.2, 6thMain road, Vasanthnagar, Bangalore and material objects M.Os.9, 16, 47, 48 and 49 i.e, Gold ornaments, mobile and cash of Rs.8,000/- were seized. He was also panch witness to seizure mahazar Ex.P.22. He has further deposed that on 13.4.2010 at about 8.10 to 8.45 he was taken to accused No.3-Chethan’s house which was situated at No.166, 2nd Cross, near flourmill, Ashwathnagar, Bangalore and the material objects – gold ornaments and Rs.8,000/- cash – M.Os.16, 24 and 50 were seized as per Ex.P.22. He has not deposed about accused Nos.1 and 6 and has supported the prosecution case. (xvii)P.W.19-Maheshkumar, who is the garage worker and panch witness to the seizure mahazar has deposed that he had received a notice from CCB to be as panch witness and accordingly, on 14.4.2010 between 10.30 a.m. to 11.30 a.m. he was taken to the Muthoot Finance Office, Dinnur Main Road, Bangalore and the material objects – M.Os.17, 18 and 51 – gold were seized at the instance of accused Nos.1 to 3 as per Ex.P.24. On 15.4.2010 between 13.30 to 14.00 hours, he was taken to Mahdevapura, Bangalore rural and the material object M.O.52 – B.P. Operatus was 87 seized as per the seizure mahazar – Ex.P.25 drawn. He has admitted in his cross-examination that he does not know the contents of Ex.P.25 and his mother tongue is Telugu. He has further deposed that on that day he was taken near a bridge, Guddemaranahalli Hand Post, Magadi Taluk, Ramanagara and material objects M.Os.53 to 63 were seized as per the seizure mahazar Ex.P.26. He has supported the case of the prosecution. (xviii) P.W.20 - an employee and panch witness has deposed that on 15.4.2010 between 10.30 to 11.20 he was taken to Saneshwara Temple, 3rd cross, Boppasandra, Bairappa Badavane, Bangalore and material objects – M.Os.5A and 5B – Gold Chain were seized as per the seizure mahazar Ex.P.28. He has turned hostile to the prosecution case. (xix) P.W.21 – Nagaraj, an Electrical Contractor has deposed that on 15.4.2010 between 10.30 and 11.20 he was taken to Saneshwara Temple, 3rd cross, Boppasandra, Bairappa Badavane, Bangalore and material objects – M.Os.5A and 5B – Gold Chain were seized as per the seizure mahazar Ex.P.28. He has not 88 identified any of the accused and has turned hostile to the prosecution case. (xx) P.W.22 – Divakar, a Businessman and the panch witness has deposed that on 11.4.2010 between 9.15 and 10.15 p.m., he was called to Adarsha Clinic, near IBP Petrol bunk, Geddalahalli, Bangalore, which is next to his house to be panch witness for spot mahazar Ex.P.3. Accordingly, he was treated as panch witness and has signed the said mahazar. He has supported the prosecution case. (xxi) P.W.23 – Nageshwar Rao, who is a Pharmacist at Adarsh Medical Store, has deposed that at about 11.00 a.m. on 9.4.2010, he had last seen the doctor Sharath Kumar along with accused No.5, who had informed him that after seeing the patient, he would come back. But he did not come back. Thereafter, Smt. Deenamma – Nurse – P.W.24 informed him about 12.00 noon that Dr. Sharath Kumar has not yet returned. Therefore, he called Dr. Sharath Kumar over mobile who replied that he would come back at 5’ O clock, but he did not come back. So again he called the doctor, who informed that it would be late. The doctor did not 89 come back on that day. Even at 7.30 p.m. the doctor called him and asked to go to Nirmal Jewellers shop where he would be given some jewels and to keep them with him. On that day, as per the instructions of Dr. Sharath Kumar, he went to Nirmal Jewelers shop where he was given a box of jewels by the owner, who had told him that there were six gold chains and four bracelets in the box. But he did not see them. When he called to the doctor to enquire, he informed him that one person by name Naveen would come and he has to hand over the box to him. At about 7.45 Naveen came to his shop. At that time, he called the doctor Sharath Kumar over phone, after enquiring with Naveen, as per the direction of Dr. Sharath Kumar, he gave the box to Naveen. He has also identified Naveen in the Test Identification Parade conducted in the Central Prison, Parappana Agrahara, Bengaluru. Accordingly, the Tahsildar has prepared the report as per Ex.P.32 and he has put his signatures at Ex.P.32c and 32d. The Tahsildar had informed him that the person, whom he had identified was Bhushit and CCB police had recorded his statement. In his cross-examination, P.W.23 has deposed that he did not know in which hospital the brother of the complainant was admitted and he had not told to the 90 daughters of the complainant in the house. He has denied the suggestions that the doctor had not telephoned to him; he had not gone to Nirmala Jewelers and not brought the box; he is deposing falsely as he was running his shop by the side of the clinic; he has not gone to the Kunigal Hospital and has not seen the body of the deceased in the hospital; and he does not know anything in the case. He has further admitted the suggestion put by the learned Counsel for respondent No.4 that the persons going to the residence and coming from the residence on the staircase by the side of his shop will be seen by sitting in his shop and he has opened his shop on the date of the incident and was in his shop. (xxi) (a) In the cross-examination by learned Counsel for accused No.5, P.W.23 has further deposed that one Nagalakshmi is running the Pharmacy on his license, she does not have license and he is taking any share in the income earned from pharmacy. He has admitted the suggestions that in order to help him, she is giving rent; So many come and go to his shop; He cannot identify all the customers; He can identify the customers who often come and go and they usually come for purchasing medicines; Police had 91 not called him to the police station between 9.4.2010 and 19.5.2010; Police had issued him a notice to come to the police station on 19.5.2010, but it is not produced. They three had gone together and the police called them one by one. No others had accompanied him. They themselves had gone and they were made to sit in the verandah in a line. At that time, the Tahsildar was also present. After drawing the report, we have signed the same. In the Test Identification Parade, they asked to identify the person, who had taken the jewels and they had identified the person. The person who had told his name as Naveen was a different person. He had shown the person, who had taken the jewels from him, but it was told by the Tahsildar that his name was Bhushit. He himself had gone to the jewelers shop. Since so many years, he was having the acquaintance with the people of the jewelery shop. They did not give any receipt, but one small slip was given. He does not know the matter and how much gold was there. They told that there were 10 items of jewels and at that time, I had seen the jewelery items. Earlier, he had not taken the jewels from the shop and on the confidence of the doctor, they had given the jewelery box. He has admitted the suggestions that the notice was issued to 92 him on 10.5.2010 specifying the names of the accused; the name of Bhushit was at serial No.5; He has identified same as D.W.2 and he has put his signature as D.W.2a on 10.5.2010; as per the direction of the police, he has identified the accused and the witness volunteers that he has not identified the accused as per the say of the police, but he himself had identified voluntarly; he has not put his signature in the jewelery shop; and it was for the first time that he had brought the jewels from the shop. Further he has denied the suggestion that he has identified the accused as per the say of the police and that he has signed all the documents in the police station. He has supported the case of the prosecution. (xxii) P.W.24 – Smt. Deenamma-Nurse has deposed that she knew Dr. Sharath Kumar as she was working in his clinic usually between 10.00 a.m. and 6.00 p.m. On 9.4.2010, in the morning at 10.00 Dr. Sharath Kumar had come to the clinic and while he was examining the patients, at about 11.30 a.m. a boy aged about 25 years came and requested the doctor to come along with him to see the patient in his house. Accordingly, the doctor accompanied him. On that day, the doctor went in a white Qualis car. She has further 93 deposed that on 19.5.2010, she was summoned to Parappana Agrahara Jail and went along with P.Ws.1 and 23. She has seen the person who had taken the doctor and she identifies him as Bhushit-accused No.5 and the name of the driver as Kumar – accused No.6. The Tahsildar, who conducted the Test Identification Parade submitted the report as per Ex.P.32. She has also identified the material objects – M.Os.1, 2, 4, 5, 52 and 63. In her cross- examination, she has admitted that she has got short sight defect and she has identified the accused mistakenly on the last occasion, who was not been seen by her. She does not know, who had called the doctor on the date of the incident and she was inside the clinic. She has turned hostile to the prosecution case. (xxiii) P.W.25 – Ravi, who is a Tailor, has deposed that at a distance of three shops, accused No 1 along with his family was residing in the first floor of Iyengar Building and on 9.4.2010 in the afternoon, accused Nos.1 to 3 had taken a person in a Maruthi Van by putting a monkey cap on his face from Ravikumar’s house. Though he has identified accused No.1, has turned hostile to the prosecution case. 94 (xxiv) P.W.26 – Anand Shetty, who is the Manager of the Muthoot Finance and panch witness has deposed that on 14.4.2010 between about 10.30 and 11.39 a.m. at No.75, Muthoot Finance Office, Dinnur Main Road, Bangalore, at the instance of accused Nos.1 to 3 gold ornaments M.Os.64, 64A, 64B, 17, 25 and 18 pledged as per Ex.P.17 – receipt by Sharanchar C.W.43, who has not been examined were seized as per the seizure mahazar Ex.P.24. He has supported the case of the prosecution. (xxv) P.W.27 Sridhar, Petrol Bunk has deposed that on 9.4.2010 at 8.30 p.m., accused Nos.1 to 3 had parked the Maruthi van some distance away from the petrol bunk and had bought 1 and 2 liter bottles of petrol. He has turned hostile to the prosecution case. (xxvi) P.W.28 – Sudheer – a Businessman, has deposed that accused Nos.3 and 4 on 8.4.2010 at 7.30 p.m. had come to his shop for purchasing rope of 3 to 4 feet and has turned hostile to the prosecution case. 95 (xxvii) P.W.29 - Subbareddy, a Contractor and panch witness has deposed that on 16.4.2010 about 10.00 to 10.45 he was taken to the house of accused No.1 which was situated at No.58, 3rd Cross, RMS Colony, Bangalore where accused No.1 had kidnapped Dr. Sharath Kumar and had threatened to kill him by the knife. After that, Dr.Sharath Kumar had intimated his wife to give the jewels and accused No.1 told accused No.4 and accused No.5 to get the jewels from Dr. Sharath Kumar’s wife (Anjali Sharath) and accused No.1 had given his pulsor bike to accused Nos.4 to 5. The said button knife which was in the bike of accused No.1 was seized as per seizure mahazar Ex.P.35. He has turned hostile to the prosecution case. (xxviii) P.W.30 - Shivanna – a Real Estate Dealer and panch witness to seizure of knife has deposed that on 16.4.2010 at about 10.00 to 10.45 he was taken to the house of accused No.1 which was situated at No.58, 3rd Cross, RMS Colony, Bangalore where accused No.1 had kidnapped Dr. Sharath Kumar and had threatened to kill him by the knife. After that, Dr.Sharath Kumar had intimated his wife to give the jewels and accused No.1 told 96 accused No.4 and accused No.5 to get the jewels from Dr. Sharath Kumar’s wife (Anjali Sharath) and accused No.1 had given his pulsor bike to accused Nos.4 to 5. The said button knife which was in the bike of accused No.1 was seized as per seizure mahazar Ex.P.35. He has turned hostile to the prosecution case. (xxix) P.W.31 – Sheik Irfan, a Electrician and witness has deposed that on 8.4.2010 at about 11.30 a.m., accused Nos.1 to 4 had been to the car shop and asked for cooling papers. The car shop owner said that already colour paper was there then why do they require cooling paper, to which accused Nos.1 to 4 told that to cover the water bottles in the car. Then he had affixed cooling paper and had received Rs.600/- from them. He has identified accused Nos.1 to 4 and has turned hostile to the prosecution case. (xxx) P.W.32 - Ravikumar Reddy, Receptionist and witness has deposed that on 9.4.2010 at 12.45 mid night accused No.1 had stayed at his hotel Rathnam International situated at Sheshadripuram. Accused No.1 had written Mr. Mahesh Kumar’s address in the ledger book as No.63, 3rd cross, RC Road, Hassan and had given the Mobile Number as 9740325635 as per Ex.P.37. 97 On the next day morning on 10.4.2010 at 8.00 a.m. they had checked out the room and has turned hostile to the prosecution case. (xxxi) P.W.33 – Ambareesh, a Cleaner has deposed that on 8.4.2010, accused Nos.1 to 4 were whispering and discussing. When he went near them, they had stopped speaking. Even though himself and Sadananda – P.W.34 heard what they spoke was that as per their plan, they had to finish it off tomorrow. He has turned hostile to the prosecution case. (xxxii) P.W.34 – Sadananda, the Manager has deposed that on 8.4.2010, accused Nos.1 to 4 were whispering and discussing. When he went near them, they had stopped speaking. Even though himself and Sadananda – P.W.34 heard what they spoke was that as per their plan, they had to finish it off tomorrow. He has further deposed that accused No.1 was using mobile phone number as 8740325653 and has turned hostile to the prosecution case. (xxxiii) P.W.35 – Lokesh, a System Administrator, who has identified the signature in sim application form has deposed 98 that he does not know who was using the said sim car. He has supported the prosecution case. (xxxiv) P.W.36 - Shivakumar, a panch witness to the seizure mahazar has deposed that on 25.4.2010 at about 4.00 to 5.00 p.m. at Sanjaya Nagar Police Station, Bangalore material objects such as Stethoscope, B.P. Aparatus, 2 silver ornaments, 2 coins of 1 rupee value each, watch, gold ring, silver ring –M.Os.63, 52, 58, 56, 57, 4, 2 in presence of P.Ws.1 and 23 were seized and seizure mahazar as per Ex.P.44 was drawn. He has supported the prosecution case. (xxxv) P.W.37 - Suresh, a Room Boy has deposed that on 9.4.2010 at 12.45 midnight, accused No.1 had stayed at their hotel Rathnam International situated at Sheshadripuram. Accused No.1 had written the address of Mr. Mahesh Kumar in Ledger book as No.63, 3rd cross, RC Road, Hassan and his Mobile Number as 9740325653. On the next day morning on 10.4.2010, at 8.00 a.m. they had checked out the room. He has turned hostile to the prosecution case. 99 (xxxvi) P.W.38 - Bhalavanth Singh, a Businessman and owner of the shop has deposed that about 15 days ago by 1.00 p.m., accused Nos.1 and 3 had purchased 3 knives for a sum of Rs.1,500/- and were whispering and looking at the other knife which were remaining in the shop. But he has not identified them in the TIP and has turned hostile to the prosecution case. (xxxvii) P.W.39 - Usharani, Guest Supporter, has deposed that she had given her photo and address to her father Narayana Swamy to purchase the sim and she has identified her signature in the application. (xxxviii) P.W.40 – Gurusiddappa, who is an Assisstant Engineer has deposed that he had prepared the spot sketch as per Ex.P.48 where the dead body was discovered. He has supported the case of the prosecution. (xxxix) P.W.41 - Shivaswamy, the Tahsildar, who conducted the Test Identification Parade of accused has deposed that he has drawn the report as per Ex.P.32 with regard to test 100 identification parade conducted on 19.5.2010 and has supported the case of the prosecution. (XL) P.W.42 - Subramani, an agriculturist has deposed that he had purchased the sim from Reliance and had given it to P.W.23 – Nageshwar Rao. (XLI) P.W.43 – Ravikumar, the doctor, who conducted autopsy on the dead body has deposed that on 10.4.2010 he conducted autopsy between 2.30 and 6.00 p.m. and has issued the postmortem report as per Ex.P.50. He has given his opinion as per Ex.P.51 that the death was due to asphysia due to pressure caused on neck. He has further opined that the death of Sharath Kumar was 12 to 18 hours prior to postmortem. He had found 19 external injuries and has identified M.O.60 rope pieces. He further admits in his cross-examination that when M.O.60 rope produced before him was cut into seven pieces, but before the Court there are nine pieces. He has supported the case of the prosecution. (XLII) P.W.44 – Venkatarama, Head Constable at CCB, has deposed that he brought the postmortem report from Kunigal 101 Police Station and gave it to CCB Police. He has supported the case of the prosecution. (XLIII) P.W.45 – Mubarakh, Police Constable at Sanjaynagar Police Station has deposed that accused No.1 used to call him often. But he has not produced any documents to show that the sim belongs to accused No.1. (XLIV) P.W.46 – Shivaraj, a Police Constable in Sanjaynagar Police Station had deposed about handing over the case files of Crime No.101/2010 and Crime No.46/2010 to CCB Police Station. (XLV) P.W.47 – Ravi D., an Accountant and the owner of Qualis Vehicle bearing Registration No.KA04B2568has turned hostile to the case of the prosecution. In his cross-examination, though Public Prosecutor has put a suggestion to him that accused No.6 was the driver of the said vehicle on 9.4.2010, he has replied that it was taken for repair. (XLVI) P.W.48 – Rajesh K., a Nodal Officer of Idea Mobile has deposed that the deceased was using Mobile Number 102 9844029393 and has produced the letter, application, driving license, CDR report for about 9 calls on 9.4.2010 and has not produced the 65(B) certificates - Exs.P.54 to 57. He has supported the prosecution case. (XLVII) P.W.49 - Revannasiddappa, a Police Constable has deposed that on 23.4.2010, he had collected 5 items from the CCB Police and handed over to Forensic Science Laboratory as per Exs.P.58 and 59. He has supported the prosecution case. (XLVIII) P.W.50 - Mayanna, an Agriculturist, has deposed that he was using the mobile phone with sim of Airtel ending with four digits and has not used the same. (XLIX) P.W.51 – Shivaraj, a Nodal Officer of Reliance has deposed that he had produced the Call records and CDR of the four mobile phones to the mobile number:9343831800 as per Exs.P.60 and 61 and has produced 65(B) Certificate. He has turned hostile to the case of the prosecution. 103 (L) P.W.52 – Muniyellappa, who is father of accused No.3 has deposed that his son was not having mobile and has turned hostile to the case of the prosecution. (LI) P.W.53 - Subhash, a Nodal Officer of Airtel has deposed that he had given CDR pertaining to seven mobiles. In his cross- examination, he has stated from which tower location they had received the mobile calls. He has not produced 65(B) certification and none of the mobile or numbers are standing in the name of accused as per Ex.P.63. He has supported the prosecution case. (LII) P.W.54 – Latha, who is the mother of accused No.4 has deposed that his son was not having mobile and has turned hostile to the prosecution case. (LIII) P.W.55 – Nagaraj, Police Inspector of Sanjaynagar Police Station has deposed that P.W.1 lodged a complaint as per Ex.P.2 on 11.4.2010 at 8.45 p.m. and he has registered a case in Crime No.101/2010 as per Ex.P.65 - FIR. He has drawn the mahazar Ex.P.3 dated 11.4.2010 between 9.15 and 10.15 p.m. He 104 has recorded the statement of P.Ws.2, 23, 24 and handed over the case file to ACP of CCB. He has supported the prosecution case. (LIV) P.W.56 - Chandrashekar, Assistant Sub-Inspector of Amruthur Police Station has deposed that P.W.14 lodged a complaint on 10.4.2010 at 11.30 a.m. as per Ex.P.12 and he registered a case in Crime No.46/2010 as per Ex.P.55 – FIR. He has supported the prosecution case. (LV) P.W.57 - Manoj, a Mobile Distribute has deposed that he went to the police station on 25.5.2010 while P.W.2 was receiving gold ornaments and had taken seven photographs as per Exs.P.67 to 73. He is the panch witness to Mahazar dated 26.6.2010 as per Ex.P.74. (LVI) P.W.58 – Shekhar, a Police Inspector has deposed that he had drawn the mahazar as per Ex.P.4 on 10.4.2010 between 11.50 and 12.20 at Holeyarakatte, Kannaguni and Adonahalli Road, Kunigal Taluk and seized the blood stained mud and material objects – M.Os.28 and 29. He drew the inquest report on 10.4.2010 about 12.30 to 2.30 near Holeyarakatte, Kannaguni and 105 Adonahalli Road, Kunigal Taluk in Crime No.46/2010 registered by Amruthur Police Station as per Ex.P.13. He drew the seizure mahazar on 10.4.2010 between 6.00 and 6.45 in Kunigal Circle Inspector Officer as per Ex.P.5. He has identified the material objects M.Os.65 to 72 and has transferred the case to Sanjayanagar Police Station. He has supported the case of the prosecution. (LVII) P.W.59 – Mukesh, who is a driver of the Qualis Car bearing Reg. No.KA04B2568which was released to P.W.47 and panch witness, has deposed about drawing of mahazar Ex.P.75 and he is witness to the said mahazar and photos Exs.P.76 to 78. He has supported the case of the prosecution. (LVIII) P.W.60 – Shashidhar, Sub-Inspector of Police of Sanjaynagar Police Station has deposed that on 10.4.2010, P.W.1 had lodged a missing complaint as per Ex.P.1 and he had registered a case in Crime No.101/2010 as per the First Information Report Ex.P.79. He has supported the case of the prosecution. 106

66. Based on the aforesaid material on record, the learned Sessions Judge proceeded to convict the accused for the offences as alleged in the charge sheet. Since the case is based on circumstantial evidence, it is the duty of the prosecution to prove the genesis of the hypothesis by linking each and every chain of circumstances, without any delink.

67. The following are the genesis of hypotheses for proving the circumstantial evidence in this case: (a) Death of the deceased is homicidal; (b) Motive; (c) Evidence of the prosecution witnesses/last seen theory of the deceased in the company of the accused; and (d) Arrest and recovery.

68. It is an undisputed fact that, the deceased Dr. Sharath Kumar was resident of Sanjaynagar, Bangalore for the last ten years prior to the incident. He was the doctor by profession having two female children. On 9.4.2010 at about 10.30 a.m. the deceased was missing from his clinic – Adarsh Clinic. Therefore a 107 complaint was lodged by P.W.1 - Anjali Sharath, the wife of Dr. Sharath Kumar as per Ex.P.1 complaining that her husband was a pediatrician doctor and had made his name in the surrounding area. Usually, if any patient approached him for treatment, in any way, he used to attend the patients. On 9.4.2010, the doctor got up in the morning, left his daughter Shilpa to M.S. Ramaiah Engineering College, Bangalore and went to the clinic at about 10.30 a.m. The complainant was alone in her house. The Dr. Sharath Kumar called her over Mobile No.9844082898 to landline of P.W.1-complainant phone No.23415000 to receive the gold ornaments from Shailendra, Nirmala Jewellers, Bangalore and after some time, another person would come home to get the golden ornaments and without opening the door, the complainant has to hand over the same through window, but she did not agree to transact golden ornaments. After five to ten minutes, Shailendra came to the house of the complainant, handed over the golden ornaments weighing about 600 gms., and told her to handover the same (gold ornaments) for somebody’s marriage, who would come to receive them. The complainant told Shailendra that her husband had told her to handover the gold ornaments. After sometime, an unknown 108 person came to the house of the complainant, asked her to handover the gold ornaments. Accordingly, the complainant had handed over the gold ornaments. Since the said person had asked water, she gave water to him, he drank and went back with gold ornaments. After five minutes, Dr. Sharath Kumar called over mobile to the complainant for confirmation of handing over the gold ornaments, to which the complainant replied that she had handed over the gold ornaments to the person, who came to receive the same and asked him to come early to go to the clinic.

69. Before adverting to the merits of the case, it is relevant to consider whether the entire trial vitiates in view of the submission of final report by the ACP of CCB and whether the learned Sessions Judge was justified in recording the statements of the accused under the provisions of Section 313 Cr.P.C., leaving the answers blank to the questions put to accused persons and signing the order sheet dated 8.12.2017 in general and in respect of accused No.7 all the answers to the questions put to him are left blank which is reflected in the certified copy obtained on 18.7.2018?. 109 70. The sum and substance of the case of the prosecution is that all the accused persons were involved in the homicidal death of the deceased Dr. Sharath Kumar for the offences punishable under Sections 342, 364A, 302, 201, 120B r/w 34 IPC. After registration of the crime by the jurisdictional police, the matter was entrusted to the Assistant Commissioner of Police, Special Enquiries Squad, CCB, Bangalore City by the Memo dated 12.4.2010 issued by the Commissioner of Police, Bengalore City for further investigation of Crime No.101/2010 of Sanjayanagar Police Station for conducting day to day investigation.

71. It is also not in dispute that the ACP of CCB, who conducted further investigation, filed the charge sheet against the accused persons to the jurisdictional Magistrate, who took cognizance of the offence on the said final report and committed the case to the Court of Sessions. It is also not in dispute that the learned Sessions Judge framed the charges against the accused persons; after recording the evidence of the prosecution witnesses, the statements of the accused persons were also recorded under 110 Section 313 of Cr.P.C., and proceeded with the trial and convicted the accused persons for the charges alleged in the charge sheet.

72. In view of the rival contentions urged by the learned Counsel for the parties stated supra, it is relevant to consider the provisions of the Code of Criminal Procedure: “Section 2(o) - ‘Officer in charge of a police station’ includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.” “Section 2(r) - ‘Police report’ means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173 of Cr.P.C.” Sub-section (2) of Section 173: As soon as the investigation is completed, the Officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a 111 police report, a report in the form prescribed by the State Government. Section 2(s) – “Police Station’ means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf. Section 32: “Mode of conferring powers:- (i) In conferring powers under this Code, the High Court or the State Government, as the case may be, may, by order, empower persons specially by name or in virtue of their offices or classes of officials generally by their official titles. (ii) Every such order shall take effect from the date on which it is communicated to the person so empowered.” CHAPTER IV: A-POWERS Of SUPERIOR OFFICERS OF POLICE – Section 36 prescribes ‘Powers of Superior Officers of Police’.- Police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to 112 which they are appointed as may be exercised by such officer within the limits of his station.

73. A careful reading of the provisions of Section 36 of Cr.P.C., makes it clear that the said provision can be divided as under: a) Police Officers superior in rank; b) an officer in charge of a police; c) limits of the station; and d) appointment. Therefore, it is clear that any police officer superior in the rank to an officer in charge of a police station shall have the same powers, throughout the local area to which they are specifically appointed.

74. On careful perusal of the memo dated 12.4.2010 as per Ex.P.111, the Commissioner of Police, Bangalore City has entrusted the Assistant Commissioner of Police, Special Enquiries Squad, CCB, Bangalore City for further investigation of Crime No.101/2010 of Sanjaynagar Police Station under Section 364(A) of IPC with immediate effect and to conduct day-to-day investigation with an 113 instruction to the Police Inspector, Sanjaynagar Police Station, Bangalore City to immediately handover the case file to the Assistant Commissioner of Police, Special Enquiries Squad, CCB, Bangalore City and report. The said memo issued by the Police Commissioner, Bangalore City has reached finality since none of the accused persons have challenged the said entrustment of day-to- day investigation conducted by the ACP of CCB. It is also not in dispute that the investigating officer so entrusted has conducted a detailed investigation and submitted the final report which has also not been challenged by any of the accused persons.

75. Admittedly, the jurisdictional Magistrate has taken cognizance of the offence as stated in the final report submitted by the ACP of CCB which was not challenged by any of the accused persons. All the accused persons allowed the trial to be conducted and ultimately the trial culminated into the conviction and now in the appeal, they have raised an objection with regard to the power exercised by the ACP of CCB in filing final report. Admittedly, in none of the contentions raised by the learned Counsel for the accused persons they have taken the contention that the ACP of 114 CCB has no power to conduct the investigation and all the learned Counsel appearing for the accused have contended that the ACP of CCB can conduct the investigation, but cannot file report as he is not an Officer in charge of a police station. When the breach of such a mandatory provision is neither brought to the knowledge of the Court at a sufficiently earliest stage nor an objection was raised while the Court was taking cognizance with regard to the fact that necessary steps were not taken to get the illegality cured so also to rectify the defect of filing the report by the ACP of CCB. It is not the case of the appellants-accused that the Court has taken cognizance of final report filed by ACP of CCB when he is not competent to proceed with the trial or they had raised objection at the earliest stage or have challenged either entrustment/conduct of the investigation by the Commissioner of Police in the year 2010 or filing of final report filed by the ACP of CCB in the year 2012 or have questioned taking cognizance by the learned Magistrate and as such, now it is not open for them to raise the same after the impugned judgment of conviction and order of sentence is passed against them. 115

76. The appellants have not shown how the miscarriage of justice has been caused in taking cognizance of the final report filed by the ACP of CCB by the competent Court. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which result from an investigation is provided under Section 190 of Cr.P.C., as the material on which cognizance was taken. Admittedly, the present appellants have admitted the entrustment of matter to ACP of CCB for conducting day to day investigation by the Commissioner of Police, Bangalore City in view of the Memo dated 12.4.2010 and when that itself is not challenged, and allowed the ACP of CCB to conduct investigation, now questioning after filing of final report and taking cognizance of the said report for the first time before this Court in the present criminal appeals is impermissible.

77. It is well settled that even if the investigation is not conducted by the authorized officer, the trial is not vitiated unless a prejudice caused is shown. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of R.A.H. Siguran –vs- 116 Shankare Gowda Alias Shankara and Another reported in (2017)16 SCC126wherein at paragraphs 9 and 10 it is held as under: “9. In H.N. Rishbud v. State (UT of Delhi) [H.N. Rishbud v. State (UT of Delhi), AIR1955SC196: (1955) 1 SCR1150:

1955. Cri LJ526 the question considered by this Court was whether after the court takes cognizance, trial can be held to be vitiated merely on the ground that investigation was invalid. Answering in the negative, this Court held that if the plea of invalidity of investigation is raised at sufficiently early stage, the court, instead of taking cognizance, direct reinvestigation by competent investigating officer. But, after cognizance is taken, the trial cannot be quashed for invalidity of investigation.

10. The observations in the said judgment are: (H.N. Rishbud case [H.N. Rishbud v. State (UT of Delhi), AIR1955SC196: (1955) 1 SCR1150:

1955. Cri LJ526 , AIR pp. 203-05, paras 9-10) “9. The question then requires to be considered whether and to what extent the trial which follows such 117 investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained 118 that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading “Conditions requisite for initiation of proceedings”. The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to 119 consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 of the Code of Criminal Procedure which is in the following terms is attracted: ‘Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.’ If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a 120 mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in Parbhu v. King Emperor [Parbhu v. King Emperor, 1944 SCC OnLine PC1: AIR1944PC73 and Lumbhardar Zutshi v. R. [Lumbhardar Zutshi v. R., 1949 SCC OnLine PC64: AIR1950PC26 These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent 121 investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.

10. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, 122 by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice. It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, Explanation to Section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is 123 expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined.” (emphasis supplied) 78. If the plea of invalidity or investigation was raised sufficiently at an early stage, the Court would not have taken cognizance, conducted trial and passed an order of conviction, 124 which cannot now be set aside on the ground of invalidity of the investigation in view of the provisions of Section 465 of Cr.P.C. which reads as under: “465. Finding or sentence when reversible by reason of error, omission or irregularity.—(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” 125 79. On careful reading of the said provision makes it clear that when no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Sub-section (2) of Section 465 Cr.P.C. prescribes that in determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earliest stage in the proceedings.

80. Any illegality committed during the course of investigation does not affect the competence and the jurisdiction of the Court for trial. Admittedly in the present case, the accused at the earliest point of time, having not questioned the entrustment of 126 the investigation to the ACP of CCB by the Commissioner of Police in the year 2010 and when mere formality of filing final report, forming an opinion by the entrusted officer was not challenged and how mere filing of the charge sheet and taking cognizance causes prejudice or results in miscarriage of justice to the appellants, is not explained by the appellants in the present appeals, when they have never raised objection at the earliest point of time. Where the cognizance of the case has, in fact, been taken and the case has proceeded to termination, convicting the accused for the offences as alleged in the charge sheet, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby, as held by the Hon’ble Supreme Court in the case of Lumbhardar Zutshi and Another –vs- The Kind reported in AIR1950Privy Council 26 as under: “When leave to appeal was granted to the appellants it was still an open question whether sanction under s. 197 of the Criminal Procedure Code was necessary before a public servant could be prosecuted for an offence under s. 161 of the Indian Penal Code. It has now been settled by their Lordships' judgment in Gill v. The 127 King [(1948) L.R. 75 I.A. 41.]. that sanction is not necessary and accordingly the appellants cannot succeed on the grounds of appeal set out in their petitions for leave to appeal. Their counsel argued this appeal on an entirely different ground which is not even referred to in the judgments of the High Court, although a preliminary objection raising a somewhat similar point was taken unsuccessfully before the Chief Presidency Magistrate. Their Lordships would only be prepared to allow such an argument in an exceptional case. In the present case it was argued that the new ground of appeal raised a question of jurisdiction, and their Lordships permitted the argument to proceed. The argument was that the trial and conviction of the appellants were void because the police investigation which led up to the trial was conducted illegally. This was a non-cognizable case and s. 58(2) of the Bombay City Police Act, 1902, provides that no police officer shall investigate a non-cognizable case without the order of a Presidency Magistrate. There was an order by the Chief Presidency Magistrate in this case, but it was submitted that this order was invalid because the magistrate was bound before 128 making such an order to comply with the requirements of s. 202(1) of the Criminal Procedure Code and he had not done so.

81. The learned Counsel for the appellants-accused are unable to show us how there has been any miscarriage of justice in the present case and how the accused persons have been prejudiced by any irregular investigation and in the absence of the same, the entire proceedings cannot be said to be vitiated as observed by the Hon’ble Supreme Court in the case of Muni Lal – vs- Delhi Administration reported in 1971 2 SCC48at pagragraph-14 as under: “14. From the above proposition it follows that where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation will not vitiate the result unless miscarriage of justice has been caused thereby and the accused has been prejudiced. Assuming in favour of the appellant, that there was an irregularity in the investigation and that Section 5-A of the Act, was not complied with in substance, the trial by the Special Judge cannot be held to be illegal unless it 129 is shown that miscarriage of justice has been caused on account of illegal investigation. The learned counsel for the appellant has been unable to show us how there has been any miscarriage of justice in this case and how the accused has been prejudiced by any irregular investigation. Admittedly the appellant did not raise any objection before the trial commenced regarding any illegality or irregularity committed during the stage of investigation. On the other hand, the trial was allowed to proceed and it came to an end. That contention was raised only at the stage of arguments. In this connection we may also refer to the decision in State of Madhya Pradesh v. Mubarak Ali [AIR1959SC707: (1959) Supp 2 SCR201: (1959) SCJ843: (1960) 1 SCA95 . There the objection was taken before the trial began before the Special Judge, that the investigation has been carried on in breach of Section 5-A of the Act. The matter was taken to the High Court and it directed that in order to rectify the defects and cure the illegality in the investigation, the Special Judge should have ordered the Deputy Superintendent of Police to carry on the investigation himself while the case remained pending in the Court of the Special 130 Judge. That order of the High Court was challenged and this Court confirmed it and declined to interfere on the ground that as the objection has been taken at the earliest stage before the trial began, the direction given by the High Court was justified as that will ensure a proper investigation being made and completed for the prosecution of the accused therein. Therefore the ratio of the said decision cannot apply and the present case will be governed by the decision in H.N. Rishbud and Inder Singh v. State of Delhi. But we make it clear that the above discussion has been made by us on the assumption that there has been an irregularity committed in the investigation in the case before us. But as we will presently show in the discussion to follow, there is no such irregularity or illegality in the investigation as contended on behalf of the appellant.” Further reliance was placed on the judgments of the Hon’ble Supreme Court in the case of Munna Lal –vs- State of U.P. reported in AIR1964SC28 Sailendra Nath Bose –vs- State of Bihar reported in AIR1968SC1292 and Khandu Sonu Dhobi and Another reported in (1972) 3 SCC786 131 82. The illegality in the investigation is curable under the provisions of Section 460 Cr.P.C. The invalidity of the precedent investigation, does not vitiate the result, unless miscarriage of justice has been caused thereby, as held by the Hon’ble Supreme Court in the case of Vinubhai Haribhai Malaviya and Others –vs- State of Gujarath and Another reported in (2019)17 SCC1at paragraph 29, which reads as under:- “29. Ram Lal Narang v. State (Delhi Admn.) [Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC322:

1979. SCC (Cri) 479]. , is an early judgment which deals with the power contained in Section 173(8) after a charge-sheet is filed. This Court adverted to the Law Commission Report and to a number of judgments which recognised the right of the police to make repeated investigations under the Code of Criminal Procedure, 1898. It then quoted the early Supreme Court judgment in H.N. Rishbud v. State of Delhi reported in AIR1955SC196:

1955. Cri LJ526: (1955) 1 SCR1150case as follows : (Ram Lal Narang case [Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC322:

1979. SCC (Cri) 479]. , SCC pp. 335-36, para

17) 132 “17. In H.N. Rishbud v. State of Delhi [H.N. Rishbud v. State of Delhi, AIR1955SC196:

1955. Cri LJ526: (1955) 1 SCR1150 this Court contemplated the possibility of further investigation even after a court had taken cognizance of the case. While noticing that a police report resulting from an investigation was provided in Section 190 CrPC as the material on which cognizance was taken, it was pointed out that it could not be maintained that a valid and legal police report was the foundation of the jurisdiction of the court to take cognizance. It was held that where cognizance of the case had, in fact, been taken and the case had proceeded to termination, the invalidity of the precedent investigation did not vitiate the result unless miscarriage of justice had been caused thereby. It was said that a defect or illegality in investigation, however serious, had no direct bearing on the competence of the procedure relating to cognizance or trial. However, it was observed:

133. ‘It does not follow that the invalidity of the investigation is to be completely ignored by a court during trial. When the breach of such mandatory provision is brought to the knowledge of the court at a sufficiently early stage, the court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re- investigation as the circumstances of an individual case may call for.’ This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it.” The Court then went on to hold : (SCC pp. 337- 38, paras 20-21) 134 “20. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate?. After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to 135 the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of CrPC in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with 136 the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light.

21. As observed by us earlier, there was no provision in CrPC, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by 137 the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.” (emphasis supplied) 83. The Hon’ble Apex Court in the case of Fertico Marketing and Investment (P) Ltd. and Others –vs- Central Bureau of Investigation and Another reported in 2020 SCC OnLine SC938at paragraphs- 18 and 22 has held as under:

138. “18. It would be relevant to refer to the Notification issued by the Government of Uttar Pradesh dated 15-6-1989, which reads as under: “Government of Uttar Pradesh Home (Police) Section-1 No.3442/VIII-1-84/88 Lucknow, dated :

15. 6-1989 Notification In pursuance of the provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 (25 of 1946) the Governor of the State of Uttar Pradesh is pleased to accord consent to the extension of powers and jurisdiction of the members of the Delhi Special Police Establishment in whole of the State of Uttar Pradesh, for investigation of offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988), and attempts, abetments and conspiracies in relation to all or any of the offence or offences mentioned above and any other offence or offences committed in the course of the transaction and arising out of the same facts, subject however to the condition that no such investigation shall be taken up in cases relating to the public servants, under the control of the State 139 Government except with the prior permission of the State Government. By order in the name of the Governor. sd/- (S.K. Tripathi) Home Secretary to the Government of Uttar Pradesh” “22. As early as in 1955, the question arose for consideration before this Court, as to whether an investigation carried out by a police officer below the rank of Deputy Superintendent of Police, under Section 5(4) of the Prevention of Corruption Act, 1947, without the order of the Magistrate of First Class, was mandatory or directory?. While holding that the provision is mandatory, this Court considered a question as to whether and to what extent, the trial which follows such investigation, is vitiated. The Court in H.N. Rishbud v. State of Delhi [H.N. Rishbud v. State of Delhi, (1955) 1 SCR1150: AIR1955SC196:

1955. Cri LJ526 , observed as under : (AIR p. 204, para

9) “9. … If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory 140 provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Parbhu v. King Emperor [1944 SCC OnLine PC1: (1943-44) 71 IA75: AIR1944PC73 and Lumbhardar Zutshi v. R. [1949 SCC OnLine PC64: (1949-50) 77 IA62: AIR1950PC26 These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no 141 relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.” “It could thus be seen that this Court has held that the cognizance and the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. It has been held that the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of the investigation has no relation to the competence of the court.

84. Though the learned Senior Counsel Sri Sandesh Chouta and Sri Hashmat Pasha argued much on the powers of the superior officers of police as envisaged under Sections 36, 173(2), 190, 102, 149 and 32 of Cr.P.C., none of the Counsel for the appellants- accused have emphasized, how this Court can set aside the investigation report, when once the cognizance is taken; trial is concluded; and the matter was culminated into passing of the 142 impugned judgment of conviction and order of sentence. It is to be noted that when the cognizance has already been taken by the competent Court and the appellants having not shown as to how they are prejudiced by miscarriage of justice, the entire proceedings cannot be said to be vitiated. Though it is a procedural irregularity, such procedural irregularity is curable and it should have been either brought to the notice of the concerned Magistrate or ought to have been challenged before appropriate forum as soon as the case was entrusted or handed over to the ACP of CCB in the year 2010 or it could have been brought to the notice of the learned Magistrate, who took cognizance of the final report. It is to be noted that the investigation had commenced in the year 2010 and after investigation, the cognizance was taken by the learned Magistrate and the case was committed to the Court of Sessions, and at all those stages, the appellants-accused were fence sitters and have not whispered anything, even after trial was commenced and impugned judgment of conviction and order of sentence came to be passed in the year 2018. But now in the year 2021, they are raising the question of irregularity in the procedure, which clearly depicts that they were not diligent in pursuing the matter at the 143 earlier stage and unless the prejudice caused is shown, the entire trial culminating of passing of impugned judgment of conviction and order of sentence, cannot be said to be vitiated.

85. Though a contention was raised by the learned Counsel for the appellants-accused especially by the learned Senior Counsel, Sri Sandesh Chouta that, the learned Single Judge of this Court has taken a view that CCB is not a police station which has persuasive value, the fact remains that the order passed by the learned Single Judge of this Court was subject matter before the Hon’ble Supreme Court in Special Leave to Appeal (Crl) Nos.2157-2158/2021 wherein the Hon’ble Supreme Court has stayed the operation of the impugned order passed by the learned Single Judge of this Court for a period of four weeks. Any how, in the present appeals, we are not deciding, whether ACP of CCB is a police station or not and that is not an issue raised at the earliest point of time. Even otherwise, the State Government by a Notification, dated 25.2.2021, in exercise of powers under the provisions of Sections 4, 5, 6, 11 and 12 of the Karnataka Police Act, 1963 and read with Section 36 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the 144 Government of Karnataka directed and appointed that, Police Officer of, and above the Rank of Inspector, in the Central Crime Branch (CCB), Bengaluru as Superior Officers of Police in respect of all Police Stations within the limits of Police Commissionerate of Bengaluru City for the purpose of exercising the powers, same as the officer in charge of a Police Station.

86. Though the said notification is prospective, we are of the opinion, that the irregularity committed by the Commissioner of Police, Bangalore City, in issuing a memo dated 12.4.2010 entrusting Crime No.101/2010 of Sanjaynagar Police Station under Section 364(A) IPC to the Assistant Commissioner of Police, Special Enquiries Squad, CCB., Bangalore with immediate effect was not challenged and they are not aggrieved by entrustment of crime to ACP of CCB, but they are specifically aggrieved by the opinion arrived at in filing the final report by the ACP of CCB. If that is so, they ought to have raised the said contention at the earliest point of time. Having maintained silence, allowed the competent Court to take cognizance of such report and proceed with the trial, they having participated in the proceedings, it is not open for the 145 accused-appellants now to contend that there is irregularity in filing the final report. In the absence of the same, the entire trial culminating conviction cannot be said to be vitiated in view of the provisions of Section 465 of Cr.P.C. stated supra. In that view of the matter, we decline to decide whether ACP of CCB is a police officer in charge of a police station which would be decided in appropriate case, if raised, at the earliest point of time.

87. The next contention raised by the learned Counsel for the appellants-accused is that the learned Sessions Judge while recording the statements of the accused under Section 313 Cr.P.C., had put: “question No.128 pertaining to accused-1 to accused No.7, question No.130 pertaining to accused-2 to accused No.7, question No.132 pertaining to accused-4 to accused No.1; question No.134 pertaining to accused-6 to accused No.7; question No.135 pertaining to accused-7 to accused No.1; question No.137 pertaining to accused-5 to accused No.1; question No.139 pertaining to accused-3 to accused No.1; question No.149 pertaining to accused-1 to accused No.1. 146 While recording the statement of accused No.2 under Section 313 Cr.P.C., answers to question Nos.82 to 89 were left blank; so also in respect of accused No.6, answers to question Nos.28 to 30 were left blank.” All the answers to the questions were left blank and signed by the learned Sessions Judge on 8.12.2017 as per the certified copy obtained on 18.9.2018.

88. A Co-ordinate Bench of this Court, by the order dated 8.10.2010 appointed the Registrar (Vigilance) of this Court to conduct thorough enquiry in the matter (recording statement of the accused persons under Section 313 of Cr.P.C., by the learned Sessions Judge) and to submit the report. Accordingly, the Registrar (Vigilance) has submitted the report which reads as under: RVI.No.1/2019 (Crl.No.1628/2018) REPORT OF THE REGISTRAR (VIGILANCE) IN CRL.A.NO.1628/2018 & CONNECTED MATTERS In Crl.A.No.1628/2018, Hon’ble Court has passed the following order on 21.02.2019:- 147 “I.A.1 of 2019 is an application filed under Section 482 of Code of Criminal Procedure, 1973, (for short ‘the Cr.P.C’) by the learned Counsel for accused No.5. It is pleaded therein that there were irregularities in recording the statement of the accused under Section 313 of Cr.P.C. That the column wherein the answers by the accused were to be recorded are left blank and non-recording of the statement of accused has resulted in irregularities which would vitiate the entire proceedings. Therefore, a prayer is made to set aside the impugned judgment of conviction passed by the trial Court. It is further argued by the learned Counsel for the applicant that the certified copy obtained by him, that it, Section 313 statement from the trial Court does not match with the certified copy of the statement of the accused which was obtained from the High Court. There are gross variations in both the certified copies. All learned counsels appearing in the connected appeals adopt the very same arguments as addressed hereinabove. They too plead the same with reference to their respective appellants. Statement of objections have been filed by the State. It is pleaded therein that the certified copy obtained by the applicant from the trial Court and the certified copy before this Court does not give room for 148 any concoction, as the certified copies said to have been obtained by the applicant from the trial Court does not bear the serial numbers of the pages which are available in the original 313 statement. It is contended that even if the said variations are accepted, the same does not vitiate the proceedings. However, on hearing learned Counsels, we are of the view that based on the contents of the application as well as the submissions made, a thorough enquiry is required to be made as to the manner in which these events have occurred. Therefore, we deem it just and necessary to direct the Registrar (Vigilance) to conduct a thorough enquiry into the subject matter and place a report before this Court. The enquiry shall engulf the manner in which the certified copy furnished by the trial Court as well as by this Court, the persons responsible for issuing both these certified copies as well as the signature of the relevant accused on their respective 313 statement and all such matters relatable to the issues on hand. The Registrar (Vigilance) shall submit a report as expeditiously as possible. Post after the report is submitted.

2. In pursuance to the above said order, original records were secured from the Criminal 149 branch of this office. Notice was issued on 13.03.2019 to the concerned advocates referred in Hon’ble Court Order to produce the certified copy of 313 Cr.P.C statement obtained in trial Court and also from the High Court. The copies of the said notices are at Flag ‘A’ & ‘A1’. In pursuance of the said notice one Sri.Mohammed Mujassim learned counsel for accused No.5, who is appellant in Crl.A.No.1628/2018 appeared and produced certified copies with C.R.No.105064/2018 dated 11.09.2018, which contains only order sheet in S.C.No.1011/2010 and another memo dated 11.02.2019 containing certified copy of statement under Section 313 Cr.P.C. in respect of accused Nos.1 to 7. The certified copy of the said order sheet and 313 Cr.P.C. statements are at Flag ‘B’ & ‘B1’. The learned counsel stated that those copies are not taken by his client or by himself, but they were obtained by one Sri.Papegowda by filing an affidavit as a third party. The said affidavit is found in the ‘B’ file of the trial Court. The learned counsel has also produced certified copy of 313 Cr.P.C statement obtained in the High Court along with memo dated 13.03.2019. The same is at Flag ‘B2’.

3. On behalf of the State, Smt.Namitha Mahesh, High Court Government Pleader appeared and brought to the notice of the undersigned with regard to discrepancy in continuous serial numbers of 150 the pages, which are available in original 313 Cr.P.C. statement and not available in the certified copy of the same produced by accused/appellant.

4. On hearing both the learned counsel and perusing the records, notices were issued to Smt.Manchali R.Desai, Section Officer, Copying Branch-III of the High Court, Sri. Lingaraju, Assistant Registrar, Smt.I.S.Deepika, Sheristedar, Smt.Jayashree, FDA, and Sri.Kariyappa Handi, SDA, who are working in Copying Branch-I of City Civil Court, Bengaluru and relevant records were secured. Further, notices were also issued to Sri.Manjunatha Swamy.T, FDA, who is a bench Sheristedar and Sri.Yogananda Kumar, FDA who is working as a pending clerk in CCH.No.64 i.e., LXIII Addl.City Civil Court, Bengaluru. Lastly notice was issued to Sri.S.M.Channappanavar, LXIII Addl.City Civil & Sessions Judge, Bengaluru City. The statement of above eight Officers/officials were recorded, they are at Flag ‘C’ and their individual statements are marked at Flag ‘C1’, ‘C2’, ‘C3’, ‘C4’, ‘C5’, ‘C6’, ‘C7’ & ‘C8’. During the course of enquiry, four documents are marked as Ex.P1, P1(a), P2, P3, P4 & P4(a), they are at Flag ‘D’ and individual documents are at ‘D1’, ‘D2’, ‘D3’, ‘D4’.

5. In the light of the directions and observations made by the Hon’ble High Court, I have 151 carefully verified the certified copy of 313 Cr.P.C. statement produced by the appellant which was obtained from the trial Court and also the certified copy obtained in this Court and I have compared them with the statements given by the witnesses and records of the case.

6. It is evident from the copy application documents at Flag ‘D’ - Ex.P4 and P4(a) that one Mr.Papegowda, third party has filed a copy application with affidavit seeking certified copies of all the Exhibits, deposition, entire charge sheet, PM report, inquest report, entire file and Judgment before the trial Court i.e., City Civil Court. The said certified copy was applied on 11.09.2018. The office clerk Sri.Kariyappa Handi has put up a note that Papegowda, party has filed copy application for entire charge sheet, exhibits, deposition and Judgment. The same is approved by the Assistant Registrar Sri.Lingaraju and signed by Smt.I.S.Deepika, Sheristedar.

7. Sri.Lingaraju, Assistant Registrar, Copying Branch-I, City Civil Court has identified the said application and admitted that the certified copy of order sheet in C.R.No.105064/2018 is in respect of S.C.No.1011/2010 and he has identified certified copy of 313 Cr.P.C. statement which also belongs to same application. 152

8. Smt.Jayashree, FDA/Examiner (‘C4’) has stated that she has signed as examined by her. Copy was applied on 11.09.2018 and it was made ready on 18.09.2018 and it was delivered on 20.09.2018. She has further stated that since there would be 100-150 files and about 230 certified copies that are to be made ready, she will not verify each page of the original and certified copy as to whether there is a writing or not.

9. Smt.I.S.Deepika, Sheristedar (‘C5’), Copying Branch has stated that after receipt of copying application one Kariyappa Handi of Copying Branch-I case worker has put up the note and she has signed the note. She has also identified the certified copy of 313 Cr.P.C statement issued by City Civil & Sessions Court in S.C.No.1011/2010 at Flag ‘B’, ‘B1’. She has also stated that they will not compare each page of the certified copy with the original and one Mr.Kariyappa Handi who is the case worker was allotted to prepare the copies.

10. Sri.Kariyappa Handi, SDA (‘C6’), whose statement is at Flag ‘C6’ has also admitted that he has put up the note and identified the signature of Smt.Jayashree and Smt.I.S.Deepika. To a question by this Authority as to why there is no mention of certified copy of order sheet and 313 Cr.P.C. statement in the note put by him and how these 153 certified copies are issued?. He has stated that since the applicant has sought the copy of the entire file along with the documents and as he has joined service in the year 2017, thinking that entire file includes 313 Cr.P.C. statement and order sheet also, he has issued the said certified copy though there was no specific request for the same.

11. Mr.S.Yogananda Kumar, FDA (‘C2’) has stated in his statement that he is working in pending branch of LXIII Addl.City Civil & Sessions Court (CCH.No.64). He has also stated that the LCRs of S.C.No.1011/2010 are indexed by him and submitted to the Hon’ble High Court. He has put his signature on index sheet of lower court record on 07.11.2018. He has made ‘A’ file and ‘B’ file. In the ‘A’ file there are totally 5 volumes. Volume No.1 contains Committal court order, order sheet, charge sheet, Volume No.2 contains continued charge sheet, Volume No.3 contains continued charge sheet and List of deposition, Volume No.4 contains List of Exhibits, Ex.P-1 to P-111 and Ex.D1 to D4 and Volume No.5 contains statement under Section 313 Cr.P.C. of A1 to A7, Judgment and warrant of commitment of A1 to A7.

12. After stitching and indexing, he has put serial numbers on ‘A’ file - Volume No.1, he has put continuous serial number seal from page Nos.1 to 154 202, on Volume No.2 – 203 to 405, on Volume No.3 – 406 to 674, on Volume No.4 – 675 to 956A, on Volume No.5 – 957 to 1138. Those continuous serial numbers are put by him by using a running number seal kept by him. He has clearly stated that these numbers were not there in the file before submitting the file to the Hon’ble High Court, only at the time of indexing he has put the serial numbers and page numbers and description of the documents on the index sheet and thereafter the file was submitted to the Hon’ble High Court.

13. Smt.Manchali R Desai (‘C3’), Section Officer Copying Branch-III of High Court has stated that advocate for the appellant Sri.Mohammed Mujassim has applied for certified copy of 313 Cr.P.C. statement which was sent in Crl.A.No.1628/2018. The said application is dated 31.12.2018 and it is marked as Ex.P3 and she has identified the certified copy of 313 Cr.P.C. statement at Flag ‘B2’ and C.R.No.10243/2018 is the said application and copy was delivered on 11.01.2019. She has further stated that these certified copies were issued from their branch after receiving LCRs from Criminal pending branch.

14. Sri.Manjunatha Swamy T (‘C7’), FDA, City Civil Court, who was also bench clerk in CCH No.64 i.e. LXIII Addl.City Civil and Sessions Court in 155 his statement has stated that he is working as a bench clerk from 01.06.2017 in the said Court and he attends to all the work in the Court hall and sends the file to the pending branch. He has also stated that he used to take signature of the witnesses on the deposition after their evidence is recorded, signatures of the accused in criminal cases, when the charge is framed on the plea and takes signature of the accused on 313 Cr.P.C. statement recorded by the Court.

15. He has further stated that in the original 313 Cr.P.C. statement in S.C.No.1011/2010 the signature of the accused Nos.1 to 7 on each page was taken by him after the Presiding Officer put the questions. He has admitted that in the original 313 Cr.P.C. statement of accused No.1 Ravikumar, in the original 313 Cr.P.C statement of accused No.2 – Ashwath, in the original 313 Cr.P.C statement of accused No.3 – Chethan, in the original 313 Cr.P.C statement of accused No.4 – Shivaprathap, in the original 313 Cr.P.C statement of accused No.5 – Bhushith. B, in the original 313 Cr.P.C statement in respect of accused No.6 – Kumar @ Anjaneya in all these accused Nos.1 to 6 statements at some page answers to some questions are left out.

16. He has further stated that in the original 313 Cr.P.C statement of accused No.7 – Sandhya @ 156 Sanjana, on each page of her statement, he has taken her signature.

17. He has stated that the original 313 Cr.P.C statement was recorded by the Presiding Officer on 08.12.2017 and Presiding Officer recorded the statement of all the accused and mentioned that the accused Nos.1 to 7 simply denied the charges leveled against them. He has taken the signature of the accused on the same day itself i.e., on 08.12.2017 only. He has stated that whatever the accused wanted to say was recorded by the Presiding Officer on the last page. He has further stated that he cannot say why some answers to the questions are left blank. He has stated that he has not meticulously verified as to whether answers to all the questions were written by the Presiding Officer before taking signature of the accused on each page.

18. The Presiding Officer Sri.S.M.Channappanavar, LXIII Addl.City Civil & Sessions Judge, Bengaluru has given his statement on 09.04.2019. He has stated that on 1.02.1997 he joined the Judiciary as Judicial Officer.

19. The learned Presiding Officer has stated that he has recorded 313 Cr.P.C statements of accused Nos. 1 to 7 in S.C.No.1011/2010 on 08.12.2017. He has mentioned in the order sheet that all the accused have simply denied the charges 157 leveled against them. He has further stated that accused Nos.5 and 7 have specifically stated that they have been falsely implicated, accused Nos.1 to 7 did not desire to lead any defence evidence. Then he has posted the case for arguments. After hearing the arguments he has passed the judgment convicting the accused on 31.08.2018 and passed sentence order on 03.09.2018. He has stated that in the certified copy of 313 Cr.P.C statement of accused No.7 produced in this appeal by the appellant, the answers given by accused No.7 Sandhya @ Sanjana from question Nos.4 to 143 are not forthcoming, but in original 313 Cr.P.C. statement, the answers are forthcoming. For accused No.1 Ravikumar @, he has framed 164 questions and recorded his answers. Even to question No.149, accused No.1 has stated about acquitting him by VIII ACMM Court and he has noted that. The learned Presiding Officer has admitted that at page No.4 of the said statement, answers to question Nos.13, 14, 15 and 16 are left blank, that omission may be while writing answers given by accused to each question.

20. Further, he has stated that such an omission has happened in the statement of accused No.2 – Ashwath at page Nos.20 & 21 to answer Nos. 82 to 89 and at page Nos.27, answer to question No.114. In the statement of accused No.3 – Chethan, at page No.5 answer to question No.21 and at page 158 No.6, answer to question Nos.22, 23, 24, & 25. Similarly, at page No.8 answer to question Nos.30, 31, 32, 33 & 34 and at page No.14, the answers to question Nos.58, 59, 60 & 61 are left out. In the statement of accused No.5 – Bhooshith.B, at page No.7 answer to question No.30 is left out and at page No.21 question No.88 is typed and at page No.22 answer to question No.88 is left blank. In the statement of accused No.6 – Kumara @ Anjaneya, at page No.7 answer to question Nos.28, 29 and 30 are left blank.

21. The learned Presiding Officer has stated that accused Nos.1 to 6 were individually questioned with separate questions and their answers is one of total denial to all question as “false” “false” i.e., ïn Kannada language “sullu” “sullu”. He has asked them whether they intend to say anything, and whatever answer given by them is noted in their respective statement. He has stated that since there were large number of questions to each accused, he went on noting the answers given by them and thereafter he handed over the 313 Cr.P.C statement of each accused to the bench clerk to obtain signature of each accused on the respective statement. Neither the bench clerk nor accused brought to his notice regarding missing of some answers in the 313 Cr.P.C statement. 159

22. In respect of 313 Cr.P.C statement of accused No.7 Sandhya @ Sanjana, the learned Presiding Officer has stated that in the certified copy of 313 Cr.P.C. statement only answers to question Nos.1 to 3 and 144 are written by him are forthcoming and in the original 313 Cr.P.C. statement, answers to all the questions are forthcoming. He has stated he has framed 145 questions to accused No.7 and her answer is one of total denial to all the questions as “false” “false” i.e., in Kannada language “sullu” “sullu”. He has mentioned in this regard in the order sheet. Accused No.7 – Sandhya @ Sanjana has given the same answers to all the questions as “false” “false” i.e., in Kannada language “sullu” “sullu”. It appears that due to work pressure and due to bonafide reason, mentioning of those answers were left out. But he has noted in the last page of her statement that even though there is no evidence, she was made as accused and she has got one year old son and she is not willing to lead any defence evidence. He has noted the same and signed on the same day.

23. The learned Presiding Officer has further stated that large number of cases were posted on that day. Further, recording of statements of all the accused consumed lot of time. The accused No.1 was in judicial custody in this case and he was remanded to judicial custody. He has further stated that he 160 informed the bench clerk to give the said statement to fill up the same after some time. He has further stated that the said bench clerk did not bring to his notice in the afternoon regarding not mentioning the answers given by the accused No.7 to question Nos.4 to 143, but accused No.7 Sandhya @ Sanjana has signed on each page only after she has given answers to all questions.

24. The learned Presiding Officer has further stated that on that day there were about 85 cases posted, he has framed questions to each accused separately considering the incriminating evidence or circumstances appearing against individual accused. He has stated that due to rush of work and over sight, the writing of those answers might have been left out. Neither the bench clerk who has taken the signature of the accused nor the accused, who have signed the statement, accused counsel or prosecutor, brought to his notice anything about such omission. But he has mentioned in the order sheet that the answers to all the questions are common that is one of total denial.

25. The learned Presiding Officer has further stated that after some days of pronouncing the Judgment, the criminal pending branch clerk brought to his notice that while indexing the file he noticed some answers were left out in 313 Cr.P.C. statement 161 of accused No.7 Sandhya @ Sanjana and then he verified the statement of accused No.7. Though he has recorded the statement of accused No.7 in her presence and hearing and she has answered all the answers as “false” “false” i.e., in Kannada language “sullu” “sullu” and whatever she wanted to say regarding the evidence against her, that is also noted by him in the first page and in the last page, the writing of the answers on the other pages were left blank. Then he has filled those answers as “false” “false” i.e., in Kannada language “sullu” “sullu”. He was not knowing that the certified copy of the same was already given by the office.

26. The learned Presiding Officer has stated that he has worked as a Judicial Officer for a period of 22 years and he has not committed any mistake at any point of time in his service. He has worked honestly and sincerely.

27. He has further stated that this case is a very sensational case and one of the accused was in judicial custody and he has to dispose of 7 years old cases he was under lot of pressure. He has prepared separate question to each of the accused and recorded their statement. It is only an accidental omission and oversight in pressure of work, the above answers to some questions are left out. 162

28. On the basis of the above statements and material documents, it is submitted that in the 313 Cr.P.C. statement of the accused most answers in the column where the answers given by the accused Nos.1 to 6 are recorded and only few answers are left blank. In the statement of accused No.7, only first page and last page answers are written, in other pages answers are left blank. Subsequently when it was brought to the notice of the Presiding Officer that the answers to question Nos.4 to 143 in respect of accused No.7 were not filled, the said blanks were filled by the Presiding Officer at the time of indexing the file for submitting the same to the High Court in this appeal. It is submitted that by that time certified copy of the 313 Cr.P.C statement and other documents of the said case have already issued by the City Civil Court to Sri.Papegowda, who had applied for the same as a third party.

29. It is submitted that the serial numbers of the pages which are available in original 313 Cr.P.C. statement, which are continuous one are put by pending branch clerk while indexing the file. So they are not appearing in the certified copy furnished by the City Civil Court before records are indexed, as it was issued much earlier to it.

30. It is submitted that the Presiding Officer has mentioned in the order sheet dated 08.12.2017 163 regarding recording of statement of all the accused and he has also mentioned that accused Nos.1 to 7 have simply denied the charges leveled against them. He has also made a note about specific answers given by accused No.5 and 7 as evident from the order sheet of trial Court, which is at back page of ‘086’ of ‘A’ file of lower court record.

31. It is submitted that the answers given by accused Nos.1 to 6 were written except few questions, which were left blank in their statement. In respect of accused No.7, in the first page and last page answers given by the accused are written and others are left blank on the same day of recording the statement, 32. It is submitted that the accused/the counsel or the prosecution or the staff of the said Court brought to the notice of the Presiding Officer missing of answers to some of the questions on the same day.

33. It is further submitted that the Presiding Officer has mentioned in para No.8 of the Judgment regarding recording of 313 Cr.P.C statement and accused denying the charges leveled against them. He has also mentioned regarding the specific answers given by accused Nos.1, 5 and 7 to 313 Cr.P.C statement at para No.9 of the Judgment. The same is 164 forthcoming at page No.9 of the Judgment and at continuous page number ‘1085’ of ‘A’ file.

34. It is further submitted that even he has mentioned at para No.131 of the Judgment at page No.69 and running page number ‘1115’ of ‘A’ file regarding the separate submission made by accused No.5 and 7 that they are not involved and there is no evidence against them and they have been falsely implicated in this case.

35. It is submitted that the Presiding Officer has stated that due to work pressure, over sight and bonafide reason, this omission of not writing the answers to all the questions has resulted.

36. It is further submitted that the Presiding Officer has stated that he has put in 22 years of service and discharged his duties honestly and sincerely and not committed any mistake at any point of time earlier. He has stated it is only an accidental omission and over sight in pressure of work the writing of answers in respect of some accused are left out. Hence, this report. Sd/- Bengaluru (P.N.DESAI) Date:26.04.2019 REGISTRAR (VIGILANCE)” 165 89. The report submitted by the Registrar (Vigilance) was taken on record and by the order dated 7.11.2019, the Registry was directed to keep it in a sealed cover and when the matter had come up before this Court on 8.10.2020, during the course of the arguments, the said report was summoned in a sealed cover and was opened before the learned Counsel for the appellants-accused and the learned Additional SPP and an observation was made by this Court which reads as under: “When the matter was listed on 7-11-2019, this Court directed the Registry to keep the report of the Registrar (Vigilance) in a sealed cover. Today, the report is summoned before this Court and opened before the learned counsel for the appellants and the learned Additional State Public Prosecutor. Perused the report of the Registrar (Vigilance) dated 26-4-2019. The Presiding Officer has filed statement before the Registrar (Vigilance) stating that he has served for 22 years and discharged his duty honestly and sincerely and has not committed any mistake at any point of time. He has further stated that he has recorded each and every statement of accused Nos.1 to 7 under Section 313 of the Code of Criminal Procedure and due to pressure of work and by 166 accidental omission and over sight, writing of answers in respect of some of the accused are left out. The Bench Clerk or the accused or learned counsel for the accused or the prosecutor have not brought to his notice about such omission. The said statement made before the Registrar (Vigilance) is placed on record. The Registrar (Judicial) is directed to keep the original report in a sealed cover and ensure that there is no leakage of the said report.

90. On careful reading of the report submitted by the Registrar (Vigilance) of this Court, clearly depicts that the learned Sessions Judge had not followed the procedure as contemplated under Section 313 of Cr.P.C., as held by this Court and the Hon’ble Supreme Court time and again.

91. When objections as to defective recording of statement under Section 313 Cr.P.C., with regard to omission to put question to the accused under Section 313 Cr.P.C., has resulted in causing prejudice to the accused and has been raised before this Court when some of the accused are in custody, while the right of the accused to speedy trial is a valuable one, the Court has to sub- serve the interest of justice keeping in view the right of the victim’s 167 family and the society at large, merely because non recording of the statement under Section 313 Cr.P.C. in proper manner by the learned Sessions Judge is in utter violation of the fundamental rights guaranteed to the accused persons under Articles 21, 22 and 39A of the Constitution of India as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure. In case the counsel for the defence was not present on that particular day, when the matter was posted for cross-examination or not at all appeared for ever to cross-examine the prosecution witnesses, it is the duty cast on the Court to ensure that, an opportunity is given to the accused to engage the services of counsel or to ensure free legal assistance to the accused is provided by appointing advocate from the Legal Services Authority, in order to provide fair trial.

92. In some of the criminal cases, the accused might be in judicial custody or might be suffering from poverty or similar circumstances and not able to engage counsel on his behalf. In those circumstances, the Court should act as societal parents and ensure fair trial is provided before passing the judgment of conviction and order of sentence against the accused persons. 168 Because of the mistake committed by the learned counsel for the accused, the accused should not be denied of an opportunity to cross-examine the prosecution witnesses. Providing a legal assistance is a constitutional mandate under Articles 21, 22(1) and 39A of the Constitution of India and further, Section 304 of the Code of Criminal Procedure provides for legal assistance to an accused on State expenditure. Omission on the part of the Court to put proper question and leaving the answers blank for the questions put to accused, particularly accused No.7, clearly depicts that the trial Court has committed an error in putting questions pertaining to one accused to another accused and leaving all the answers blank is unknown and the mistake committed is admitted in the report submitted by the Registrar (Vigilance) of this Court.

93. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Ashok Debbarma v. State of Tripura reported in (2014)4 SCC747 wherein the Hon’ble Supreme Court held at paragraphs 35 to 38 as under: “35. Can the counsel's ineffectiveness in conducting a criminal trial for the defence, if 169 established, be a mitigating circumstance favouring the accused, especially to escape from the award of death sentence. The counsel for the appellant, without causing any aspersion to the defence counsel appeared for the accused, but to only save the accused from the gallows, pointed out that the records would indicate that the accused was not meted out with effective legal assistance. The learned counsel submitted that the defence counsel failed to cross-examine PW1and few other witnesses. Further, it was pointed out that the counsel also should not have cross- examined PW17 since he was not put to chief- examination. The learned counsel submitted that the appellant, a tribal, coming from very poor circumstances, could not have engaged a competent defence lawyer to conduct a case on his behalf. Placing reliance on the judgment of the US Supreme Court in Strickland v. Washington [80 L Ed 2d 674 :

466. US668(1984)]. , the learned counsel pointed out that, under Article 21 of our Constitution, it is a legal right of the accused to have a fair trial, which the accused was deprived of.

36. Right to get proper and competent assistance is the facet of fair trial. This Court in 170 M.H. Hoskot v. State of Maharashtra [(1978) 3 SCC544:

1978. SCC (Cri) 468]. , State of Haryana v. Darshana Devi [(1979) 2 SCC236, Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC98:

1980. SCC (Cri) 40]. and Ranjan Dwivedi v. Union of India [(1983) 3 SCC307:

1983. SCC (Cri) 581]., pointed out that if the accused is unable to engage a counsel, owing to poverty or similar circumstances, trial would be vitiated unless the State offers free legal aid for his defence to engage a counsel, to whose engagement, the accused does not object. It is a constitutional guarantee conferred on the accused persons under Article 22(1) of the Constitution. Section 304 CrPC provides for legal assistance to the accused on State expenditure. Apart from the statutory provisions contained in Article 22(1) and Section 304 CrPC, in Hussainara Khatoon (4) case [(1980) 1 SCC98:

1980. SCC (Cri) 40]. , this Court has held that: (SCC p. 105, para 7). “7. … This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation….” 171 37. The question raised, in this case, is with regard to ineffective legal assistance which, according to the counsel, caused prejudice to the accused and, hence, the same may be treated as a mitigating circumstance while awarding sentence. A few circumstances pointed out to show ineffective legal assistance are as follows: (1) Failure to cross-examine PW1 the injured first informant which, according to the counsel, is a strong circumstance of “ineffective legal assistance”. (2) The omission to point out the decision of this Court in Dalbir Singh [State of Punjab v. Dalbir Singh, (2012) 3 SCC346: (2012) 2 SCC (Cri) 143]. , wherein this Court held that Section 27(3) of the Arms Act was unconstitutional, was a serious omission of “ineffective legal advice”, at the trial stage, even though the High Court has found the appellant not guilty under Section 27 of the Arms Act, 1959. (3) Ventured to cross-examine PW17 who was not put to chief examination.

38. Right to get proper legal assistance plays a crucial role in adversarial system, since 172 access to counsel's skill and knowledge is necessary to accord the accused an ample opportunity to meet the case of the prosecution. In Strickland case [Strickland v. Washington, 80 L Ed 2d 674 :

466. US668(1984)]. , the US Court held that a convicted defendant alleging ineffective assistance of counsel must show not only that counsel was not functioning as the counsel guaranteed by the Sixth Amendment so as to provide reasonable effective assistance, but also that counsel's errors were so serious as to deprive the defendant of a fair trial. The Court held that the defiant convict should also show that because of a reasonable probability, but for counsel's unprofessional errors, the results would have been different. The Court also held as follows: (L Ed p.

682) “… Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must 173 indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case.

94. Apart from indicative that the principles of a fair trial permeate the common law in both civil and criminal contexts, this Court underscored the necessity of a delicate judicial balancing of the competing interests in a criminal trial – the interests of the accused and the public and to a great extent that too of the victim, at the same time not losing the sight of public interest involved in the prosecution of persons who commit offences. The fate of the criminal proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community and are harmful to the society in general. That the “concept of fair trial entails the triangulation of the interest of the accused, victim, society” and that the community acts through the State and the prosecuting agency was authoratively stated. The interests of the society are not to be treated completely with disdain and as 174 persona non grata. The due administration of justice is always viewed as a continuous process, not confined to the determination of a particular case so much so that a court must cease to be a mute spectator and a mere recording machines, but become a participant in the trial evincing intelligence and active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administration of justice with fairness and impartiality both to the parties and to the community.

95. Admittedly in the present case, the procedure adopted by the learned Sessions Judge is in violation of the provisions of Articles 21, 22 and 39A of the Constitution of India as well as the provisions of Sections 313, 303 and 304 of the Code of Criminal Procedure. Therefore, the matter requires reconsideration. In order to give one more opportunity, the matter requires reconsideration afresh, from the stage of recording of the statement of the accused under Section 313 Cr.P.C., we are of the considered opinion, that the matter requires remand at that stage for fresh consideration and we resist to express any opinion on merits and demerits of the case and all the contentions urged by the learned 175 Counsel for the appellants are left open to be urged at appropriate stage i.e., after the learned Sessions Judge passes orders on merits and in accordance with law.

96. In view of the above, the first point raised in the present criminal appeals is answered in the affirmative holding that the ACP of CCB is empowered to conduct day to day investigation in view of the memo dated 12.4.2010 issued by the Commissioner of Police, Bangalore City in exercise of powers under Section 154(3) of the Code of Criminal Procedure and he can file the report and by mere filing of the report, the entire proceedings culminating conviction of accused persons will not vitiate the proceedings. Accordingly, the second point raised in the present criminal appeals has to be answered in the negative holding that the learned Sessions Judge was not justified in recording the statements of the accused under Section 313 of Cr.P.C., leaving the answers blank to the questions put in respect of accused persons and signing the order sheet dated 8.2.2017 and particularly all the answers to the questions put to accused No.7 are left blank in the certified copy obtained on 18.7.2018 in view of the provisions of 176 Articles 21, 22 and 39A of the Constitution of India and Sections 313, 303 and 304 of the Code of Criminal Procedure.

97. In view of the opinion expressed by us while answering point Nos.1 and 2, question of answering point No.3, in the present criminal appeals, at this stage, would not arise since, we are remanding the matter keeping open all the contentions urged with regard to merits of the case.

98. For the reasons stated above, we passed the following:

ORDER

i) All the criminal appeals are allowed; ii) The impugned judgment of conviction dated 31.8.2018 and order of sentence dated 3.9.2018 passed by the learned LXIII Additional City Civil and Sessions Judge, Bangalore in S.C.No.1011/2010 convicting and sentencing the appellants-accused persons for the offences punishable under Sections 342, 364A, 302, 201, 120B r/w 34 of the Indian Penal Code, is hereby set aside; 177 iii) The matter is remanded to the Sessions Court for reconsideration afresh from the stage of recording of the statements of the accused under Section 313 Cr.P.C. The Sessions Court considering the evidence on record shall put specific and separate questions to each of the accused persons with regard to incriminating evidence and circumstances adduced against each of the accused by affording an opportunity to each of them to cross-examine the prosecution witnesses, if any, and shall proceed strictly in accordance with law; iv) Since the matter is of the year 2010, we direct the learned Sessions Judge to expedite the matter subject to co-operation by the Counsel for the parties and dispose off the same in accordance with law within an outer limit of eight months from the date of receipt of a copy of this judgment; v) Since, the matter is remanded, we are not expressing any opinion on merits and demerits of the case; and 178 vi) In view of the fact that the impugned judgment of conviction and order of sentence is set aside, the accused persons, who were on bail during the pendency of the trial or during the pendency of the present criminal appeals, are at liberty to file necessary bail applications before the trial Court and the learned Sessions Judge shall consider the same and pass appropriate orders in accordance with law. vii) Consequently, all the pending applications are disposed off. Sd/- JUDGE Sd/- JUDGE Nsu/-