Judgment:
1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF JUNE, 2022 PRESENT THE HON'BLE MR.JUSTICE K. SOMASHEKAR AND THE HON’BLE MR.JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO.237 OF2021BETWEEN:
1. RAFEEQ ALIAS DOBH S/O LATE PYAREJAN AGED ABOUT29YEARS R/AT NO.7TH CROSS, S.R. NAGAR CHANDRAPPA LAYOUT DAIRY CIRCLE BENGALURU - 560 030.
2. SADIQ AHEMMED S/O LATE PYAREJAN AGED ABOUT24YEARS R/AT7H CROSS, S.R. NAGAR CHANDRAPPA LAYOUT DAIRY CIRCLE BENGALURU - 560 030.
3. MOHAMMED NAVAAZ ALIAS NAVAAZ S/O MOHAMMED NOORULLA AGED ABOUT23YEARS R/AT NEAR D.S.S. CHANDRAPPA HOUSE GULBARGA COLONY ROOPENA AGRAHARA2BOMMANAHALLI BENGALURU - 560 030. ... APPELLANTS (BY SRI. MOHAN KUMAR D., ADVOCATE) AND: STATE OF KARNATAKA BY KARNATAKA ELECTRONIC CITY PS REP BY ITS STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU - 560 001. …RESPONDENT (BY SMT. RASHMI JADHAV, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) OF CR.P.C., PRAYING TO SET ASIDE THE
JUDGMENTOF CONVICTION DATED:23.10.2019 AND
ORDEROF SENTENCE DATED:28.10.2019 PASSED BY THE IX-ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE IN S.C. NO.166/2016, CONVICTING THE APPELLANT/ACCUSED NOS.1,2,3 FOR THE OFFENCE P/U/S302 201 R/W34OF IPC. THIS CRIMINAL APPEAL, COMING ON FOR DICTATING
JUDGMENT, THIS DAY, K. SOMASHEKAR J., DELIVERED THE FOLLOWING:
JUDGMENTThis appeal is directed against the judgment and conviction dated 23.10.2019 and order of sentence dated 28.10.2019 rendered by the Court of IX Additional District 3 and Sessions Judge, Bangalore Rural District, Bangalore (hereinafter for brevity referred to as the ‘trial Court’) in S.C.No.166/2016, convicting the appellants / accused Nos.1 to 3 for the offences punishable under sections 302, 201 read with 34 of Indian Penal Code, 1860 (hereinafter for brevity referred to as the ‘IPC’) and sentencing the accused Nos.1 to 3 to undergo life imprisonment and pay fine of Rs.10,000/- each for the offence punishable under section 302 of IPC and further sentencing the accused Nos.1 to 3 to undergo simple imprisonment for a period of two years and to pay fine of Rs.5,000/- each for the offence punishable under section 201 of IPC. Whereas in this appeal, the appellants / accused Nos.1 to 3 are seeking intervention in the aforesaid judgment of conviction and order of sentence, by submitting to consideration the grounds urged in the appeal and consequently, seeking for setting aside the judgment of conviction and order of sentence rendered in the aforesaid case against them and 4 acquit them of the offences punishable under sections 302, 201 read with 34 of IPC.
2. Heard learned counsel Sri.Mohankumar appearing for the appellants / accused and Smt.Rashmi Jadhav, learned HCGP appearing for the respondent - State and perused the impugned judgment of conviction and order of sentence rendered by the trial Court in S.C.No.166/2016.
3. The factual matrix of the appeal for consideration in this appeal is as under: It is transpired in the case of the prosecution that, accused Nos.1, 2 and 3 had advised or given caution to deceased Marappa about eve-teasing and closely moving with wife of accused No.2 namely Shaheena and in this regard, some quarrel took place between accused Nos.1, 2 and 3 and deceased Marappa. At the time when altercation took between them, CW.4 (PW.1) - Ramanjini and CW.5 (PW.4) - Raja intervened and advised the 5 deceased Marappa to rectify his mistake. But the deceased did not rectify his mistake and continued his habit of eve- teasing and also closely moving with the wife of accused No.2. Therefore, accused Nos.1, 2 and 3 decided to eliminate the deceased Marappa. In order to achieve the said intention, on 07.05.2016, the accused Nos.1, 2 and 3 had preserved the deadly weapon like long chopper and chilly powder packet in the auto-rickshaw of accused No.3 - Mohammed Navaaz @ Navaaz bearing No.KA.05.AC.7964. On the same day, at around 7.30 p.m., the accused Nos.1, 2 and 3 together visited Dairy Circle, Bangalore, in the said auto-rickshaw, where the deceased Marappa and PW.1 – Ramanjini and PW.4 – Raja, who have been cited as witnesses in the charge-sheet as CW.4 and CW.5, were talking to each other and the accused persons asked the deceased Marappa to accompany them in their auto- rickshaw as they had some work with him and also gave him an assurance him to provide alcohol, as he had habit of consuming alcohol. Accordingly, the accused persons 6 took the deceased Marappa with them in the auto- rickshaw belonging to accused No.3 and thereafter, on the same day, during night hours, the accused persons took the deceased to an abandoned house located at Naidu Layout towards northern side of Basapura Subhash Nagar Road wherein the accused made Marappa to consume alcohol and when the deceased Marappa was in an intoxicated stage, he had addressed the accused persons about their objection to talk with Shaheena, wife of accused No.2. At that time, the accused No.1 Rafeeq @ Dobh brought long chopper and accused No.3 Mohammed Navaaz @ Navaaz brought the packet containing chilly powder from the auto-rickshaw and accused No.3 sprinkled the chilly powder to the eyes of deceased Marappa, accused No.2 - Sadiq Ahmed held both hands of the deceased firmly on his back and accused No.1 chopped the head and right hand of Marappa with long chopper and mercilessly murdered the deceased Marappa. The accused persons with an intention to destroy the 7 evidence after mercilessly murdering the deceased Marappa, took that chopped head and also right hand of deceased Marappa in their auto-rickshaw from the place of murder to the canal located attached to Vittasandra, Begur Road where there was a gutter flowing with foul water and dumped the head and right hand of deceased Marappa which were chopped by the accused No.1 using long chopper, with the assistance of accused Nos.2 and 3, in terms of their common intention to eliminate the deceased Marappa.
4. Upon credible information to the Police Control Room and in turn to the Electronic City Police, CW.1 Ashwathnarayana, who is examined as PW.2, ASI of the said police station along with his staff visited the place of information, confirmed regarding murder. At the same time, the Inspector of said police station has also visited the place and as per the instruction of the said Inspector, CW.1 - Ashwathnarayana, who is examined as PW.2, has 8 given First Information Report to the Station House Officer of the said police station, in pursuance of the information relating to the murder of a person, a case has been registered and investigated the matter. During the course of investigation, the Investigation Officer has identified the dead body with the assistance of finger print bureau attached to the Office of Commissioner of Police, as the deceased Marappa was an accused in some other crimes and made an enquiry with the relatives of the deceased and arrested the accused persons and recorded their voluntary statements, and in pursuance of the voluntary statements / disclosure statements made by the accused persons, recovered the long chopper, which is a deadly weapon, used by the accused No.1 and also blood stained clothes of accused Nos.1 and 2. At the instance of accused persons, also recovered chopped head, right hand part of the deceased along with his T-shirt at the instance of the said accused. During the investigation, the Investigation Officer has obtained the FSL report, seized auto-rickshaw 9 allegedly used by the accused for commission of offence and after completion of the investigation thoroughly done by the Investigating Agency, laid the charge-sheet against the accused for the offences punishable under sections 302 and 201 read with 34 of IPC before the committal court.
5. Subsequent to the laying of charge-sheet by the Investigating Officer, accused Nos.1 and 2 said to have been produced from judicial custody and they had secured the service of a counsel in terms of defence. But accused No.3, who has appeared before the court by engaging the service of his counsel, has been enlarged on fresh bail. The trial Court also followed the requisite provision of the Code of Criminal Procedure and since charge-sheet copies were furnished to the accused persons before the committal court itself, the trial Court after hearing the learned Public Prosecutor and defence counsel relating to the charge and on prima facie found that there are strong 10 materials against the accused and consequently, the charges were framed against the accused for the aforesaid offences and read over and explained in the language known to them. The accused pleaded not guilty and claimed to be tried. Accordingly, plea of the accused was recorded separately.
6. Subsequent to framing of charge against the accused, the case of the prosecution has been put on trial and accordingly, PW.1 to PW.19 have been subjected to examination, got marked 34 material documents as Ex.P1 to Ex.P34 and so also material objects as per MO.1 to MO.13. Subsequent to closure of the evidence of the prosecution witnesses, the trial Court has called upon the accused to enter on their defence evidence as contemplated under section 233 of Cr.P.C., but the accused did not come forward to adduce any defence evidence. The statement of the accused Nos.1, 2 and 3, as contemplated under the provision of section 313 of Cr.P.C., was recorded. The 11 accused denied the incriminating evidence adduced by the prosecution witnesses against them, but not led any defence evidence on their behalf.
7. Subsequently, the trial Court heard the arguments advanced by the learned Public Prosecutor and so also the counter argument made by the defence counsel. On close scrutiny of evidence of PW.1 - Ramanjini and also the evidence of PW.4 – Raja, inclusive of evidence of PW.2 – Ashwathanarayana who got some information from the Police Control Room, Bangalore City, that in the limits of Electronic City police, a dead body of a person was lying, PW.2 – Ashwathanarayana, being an ASI, visited the place where the dead body of a person was lying without having any head part and also right hand, PW.10 – Dr.Geraldine Sanjay who conducted autopsy over the dead body of the person and issued postmortem report as per Ex.P16, and PW.17 – V.J.Mithun Shilpi, Investigating Officer who held inquest over dead body as 12 per Ex.P17 and so also again held inquest over the dead body of a person namely Marappa, whereby identified the dead body and issued inquest mahazar at Ex.P19, photos at Ex.P3 to Ex.P11 and so also photo of auto-rickshaw of accused No.3 at Ex.P21 and Ex.P22 and so also another mahazar at Ex.P20, even seizure mahazar at Ex.P30, spot sketch of dead body at Ex.P31, though the prosecution has given more credentiality to the FSL report at Ex.P32 and Ex.P33, similarly MO.1 – chilly powder, MO.3 – chopper, MO.13 – human right hand, MO.10 - blue colour T-shirt, MO.11 – left femur, MO.4 – shirt of accused No.1, MO.5 – T-shirt of accused No.2 (MO.10, MO.11, MO.4 and MO.5 are marked at Exs.P10, P11, P4 and P5 respectively), the entire case revolves around the evidence of those witnesses, inclusive of evidence of PW.19 – Malathi.D. – being the FSL authority who issued FSL report at Ex.P33, so also Ex.P32 – FSL report, and finger print examination report at Ex.P24 and finger print spot report at Ex.P25, these are all the important evidence on the part of the 13 prosecution which were appreciated by the trial Court and more so, gave more credentiality to the evidence of PW.9 – Doreswamy, who is the Home Guard who has been deputed to the Electronic City Police Station, that the Investigating Officer has called him near the house of one Chandrappa at Rupena Agrahara, Gulbarga Colony, where he found accused No.3 and also saw his auto-rickshaw. PW.9 – Doreswamy identified accused No.3 in the police station and gave a statement to that effect. The testimony of PW.9 is only a formal one and does not require detailed consideration. The evidence of PW.19 – Malathi.D., being a FSL authority, who was entrusted to analyse the material objects, in all 13 sealed articles, has stated in her report that blood stains were detected on item Nos.1, 3, 4, 5, 6, 7, 8, 9 and 10 and opined that blood stains detected on item Nos.3, 4, 6, 7, 8, 9 and 10 are of human in origin and of male sex. She has further opined that tooth and right humerus sent as item Nos.11 and 12 are of human in origin and of male sex. Amplicons from blood stains 14 detected on item Nos.1 and 5 and amplicons from item No.13 were not sufficient for DNA profile examination. The DNA profile of the deceased Marappa from whom tooth and right humerus bone collected and sent in item No.11 and 12 respectively and the DNA profile of the blood stains detected on item Nos.3, 4, 6, 7, 8, 9 and 10 are identical and matching with each other. From analyzing the evidence of each one of the witness’s sequences, the trial Court held that the entire case rests on circumstantial evidence and held conviction against the accused for the offences punishable under sections 302, 201 read with 34 of IPC. However, the trial Court had given more credentiality to the postmortem report – Ex.P16 which indicates internal injuries and so also external injuries. In external injuries, in all 1 to 8, chop wounds, incised wound, vertically placed stab wound, horizontally placed stab wound, chop wound 15 cm. x 12 cm. present over the right shoulder, underlying tissues, muscles and vessels, nerves and bone ends are exposed, multiple 15 superficial incised wounds ranging from 6 cm x 0.1 cm x sub-cutaneous tissue deep to 12 cm x 0.1 cm x sub- cutaneous tissue deep present over the upper part of front of chest over an area of 12 cm x 10 cm on right side. PW.10 – Dr.Geraldine Sanjay who conducted autopsy over the dead body of a person namely Marappa and issued postmortem report at Ex.P16 and whereby in his evidence he has reiterated the internal injuries as well as external injuries, specifically stated in his postmortem report at Ex.P16 and also opined that the cause of death is due to multiple injuries sustained. Therefore, the evidence of PW.10 clearly indicates, which was also considered by the trial Court, that death of Marappa was due to homicidal, but not for any other reasons under normal circumstances. Whereas the trial Court convinced by the evidence let in by the prosecution and also marking of several documents inclusive of material objects, came to the conclusion that the entire case is based on circumstantial evidence and even though there are no eye- 16 witnesses to the incident of heinous nature i.e., murder, as narrated in detail in the charge-sheet, committed by the accused Nos.1, 2 and 3. That accused Nos.2 and 3 having common intention assisted accused No.1 who committed the murder mercilessly by chopping the right hand part upto the shoulder level of the deceased Marappa and also decapitated deceased Marappa. On the premise of this evidence, the trial Court held conviction against the accused Nos.1, 2 and 3 for the offences punishable under sections 302, 201 read with 34 of IPC, and it is this judgment which is challenged in this appeal by urging various grounds.
8. Sri.Mohankumar.D., learned counsel appearing for the appellants / accused submitted a synopsis, by referring to the evidence of CW.2, CW.3, CW.5 and they have been subjected to examination on the part of the prosecution. PW.1 – Ramanjini and PW.4 – Raja though they have been subjected to examination on the part of the 17 prosecution and even prior to this incident, some quarrel took place in between accused Nos.1, 2 and 3 with the deceased Marappa whereby the deceased Marappa was closely moving with Shaheena, who is the wife of accused No.2, but for that some sort of habit developed by him with the wife of accused No.2 and it was objected by them and also advised by them not to move with her. But for the advice made by them, even then the deceased Marappa continued his habit to move with that Shaheena who is wife of accused No.2, but for that reason, there was some animosity developed in between deceased Marappa and also accused No.1, who is brother of accused No.2 and accused No.3 who is also held in assistance with remaining accused Nos.1 and 2. Accused Nos.1 to 3 picked up a quarrel with Marappa in respect of some sort of relationship developed with Shaheena who is none other than the wife of accused No.2. But on fateful day i.e., on 07.05.2016, at around 7.30 p.m., the accused Nos.1 to 3 took Marappa in the auto-rickshaw belonging to accused 18 No.3 bearing registration No.KA.05.AC.7964 towards Hosur. This evidence has been let in by the prosecution by subjecting PW.1 – Ramanjini to examination, who has further deposed about the incident of quarrel, which took place between accused Nos.1, 2 and 3 with deceased Marappa, said to have been culled by PW.1 – Ramanjini and PW.4 – Raja. But there was some animosity developed in between them and there is no specific evidence on the part of the prosecution.
9. PW.2 –Ashwathnarayana, being the ASI, got some information from the Police Control Room in the limit of Electronic city police station and soon after getting information, had visited the place as where the dead body of a person was lying without head part and so also right hand part which was severed at the shoulder. But PW.2 – Ashwathnarayana who visited the spot and found that head and right hand were not there. There were no clothes on the chest and also no clothes on the body of the 19 deceased whereby his body was lying. But there was one packet containing some chilly powder present near the body of the deceased. PW.2 – Ashwathnarayana who came to know about the incident happened during night hours of 07.05.2016 to 08.05.2016, and even on search in respect of the head part and also right hand part, he could not trace them. Thereafter, he lodged the complaint on 08.05.2016 at around 8.45 p.m., which is marked at Ex.P2 and he identified the packet containing chilly powder and so also underwear of deceased Marappa which are marked as MO.1 and MO.2. On 12.05.2016, the Police Inspector apprehended the accused Nos.1 and 2 and brought them to the police station to proceed further in the investigation. On 30.05.2016, the Investigating Agency apprehended another accused namely Navaaz, who is termed as accused No.3 and brought him to the police station. PW.2 – Ashwathnarayana has identified accused Nos.1 to 3. Even though PW.2 has been subjected to cross- examination relating to his visit to the place where the 20 dead body of a person was found lying and he has deposed that he has not seen any other properties at the spot and he was not present at the time of seizure of the properties from the scene of crime i.e., where the dead body of a person was lying without head and right hand. PW.2 did not show the place of offence to the Investigating Officer and he does not know specifically the time and place of apprehending accused Nos.1 to 3. These are all the evidence which have not been properly appreciated by the trial Court which held conviction against the accused only based upon the evidence of PW.10 relating to autopsy held over the dead body and also given more credentiality to the evidence of PW.1 - Ramanjini and PW.4 - Raja.
10. PW.3 – Shivappa, who is no other than the brother of deceased Marappa, and he was also subjected to examination on the part of the prosecution. The police had shown the photos pertaining to his brother Marappa wherein there was no head part and right hand part. The 21 police had not shown the photo pertaining to his brother’s right hand wherein the name of ‘Pavithra’ was printed on the right hand part. Further he deposed that the right hand of his brother was amputated from shoulder. However the police had again showed the photo of his brother Marappa pertaining to head wherein he identified injury mark on neck of his brother. Even though PW.3 – Shivappa has been subjected to cross-examination wherein he deposed that his brother Marappa stayed with him till 06.05.2016 and then he came to know about the death of his brother on 09.05.2016 through police. On 12.05.2016 at around 09.30 a.m. to 10.00 a.m., he went to the police station for collecting the body of his brother Marappa. He has deposed that it may be true that murder cases were filed against his brother in different police stations, but he does not know about criminal cases, three in number, which were registered his brother Marappa in the limits of Adugodi Police Station. However, this witness has 22 identified the operation mark on the neck of his brother Marappa in the photo which is marked as Ex.P9. The evidence of PW.3 – Shivappa and the evidence of PW.1 - Ramanjini and PW.4 – Raja, run contrary to each other and more over there is no direct overt act attributed against accused Nos.1, 2 and 3 and there is no direct evidence against them that they have committed the murder of Marappa mercilessly by severing his head and also right hand from the shoulder level.
11. But PW.4 – Raja who had been subjected to examination and he deposes that he had not seen the dead body of Marappa. The house of accused No.3 is located in front of his house that is nearby, but he did not enquired with accused persons about Marappa and he had not given any statement to the police about the incident. PW.4 – Raja was also subjected to cross-examination relating to the auto-rickshaw KA.05.AC.7964 whereby the accused Nos.1 to 3 came in the auto-rickshaw and took the 23 deceased Marappa in that auto-rickshaw towards Hosur road. He has denied to have visited the hospital and identified the body of Marappa and his statement is marked as Ex.P12.
12. PW.5 – Thippeswamy was also subjected examination to prove the guilt of the accused. On 08.05.2016 at around 9.40 a.m., he received a message from master control room of the Office of the Commissioner through wireless and informed him to visit the place of murder within the limits of Electronic City Police Station. Accordingly, he along with his staff went to the place of murder and after collecting the details, on the same day, he sent reports, as per Ex.P24 and Ex.P25, to the Electronic City Police Station. He identified the photographs as Ex.P9 to Ex.P11. In cross-examination, he has deposed that all the five fingers in the left hand of the dead body were intact. The name of the accused in Crime No.100/2008 is one 24 Marappa @ Gusa bin Muniveerappa. The deceased Marappa was involved in Crime No.344/2012 of Banashankari Police Station and in Crime No.100/2008 of Tilaknagar Police Station and finger print of Marappa taken in those cases tally with the fingerprint of the deceased.
13. PW.6 – M.Sathyanarayana had discharged his duty as ASI in Electronic City Police Station from 2010 to November 2016. He identified the report which is marked as Ex.P13 and his signature as Ex.P13(a). Even this witness was also subjected to cross-examination.
14. Similarly, PW.7 – Shivaraj, PW.8 – Ashok.R and PW.9 – Doreswamy have been subjected to examination and cross-examination and more over, they have stated in their evidence that they do not know any other information about the involvement of the accused Nos.1, 2 and 3. In the cross-examination of PW.9 – Doreswamy, he has specifically stated that CW.29, being a cited witness, 25 has shown him the accused No.3 in the police station. He does not know any other information about accused No.3 except the say of CW.29 and also he has noticed accused No.3 near Chandrappa’s house. On the same day at around 10.30 a.m., he left the police station.
15. Learned counsel for the appellants submitted that, whatever the evidence that has been stated on the part of the prosecution suffered from infirmity and also no credible evidence has been let in by the prosecution for securing conviction. But the trial Court rendered a conviction judgment by giving more credentiality to the evidence of PW.10 – Doctor, who conducted autopsy over the dead body and issued postmortem report, whereby it indicates the internal injuries and also external injuries and also there was some tattoo mark read as ‘Pavithra’ in Kannada present over the upper part of front of right forearm of the deceased Marappa. Merely because the stab injury and chopped wound and even multiple superficial 26 incise wound, but there is no direct evidence attributed against the accused that the accused Nos.1, 2 and 3 alone committed the murder of the deceased by taking the deceased Marappa to a secluded place with a common intention to kill him and made him to consume heavy alcohol and while he was in an inebriated condition, the accused No.3 spread the chilly powder on the eyes of Marappa, accused No.2 held both hands of deceased Marappa firmly on his back and accused No.1 mercilessly assaulted the deceased Marappa with a long chopper by severing his head and right hand upto shoulder level. But the evidence which has been let in by the prosecution suffer from inconsistencies and contradictions and there is no worthwhile evidence let in by the prosecution even though they have been subjected to examination.
16. PW.11 – Siraj Sharif who identified his signature in Inquest Mahazar at Ex.P17, but he has 27 specifically stated that he does not know the contents made in that mahazar.
17. PW.12 – Munavar Pasha, who is also being secured as a panch witness in respect of Ex.P17 – Inquest Mahazar, has deposed that about one year back, when he was coming on his bike from Bettadasapura at Subash Nagar on a service road of NICE road, police called him near drainage and showed him the human head portion of dead body and he saw PW.11 – Siraj Sharif standing near the said place. PW.12 identified his signature in Ex.P17 which is marked as Ex.P17(b). In cross-examination, he has specifically stated that he does not know whether accused Nos.1 and 2 showed separated head and right hand of dead body to the police on that date and he signed Ex.P17 – Inquest Mahazar second time for court purpose, but he does not know the contents of the documents in which his signatures were 28 obtained by the Investigating Agency. He has admitted that he has signed only at the instance of the police.
18. PW.13 – Maregowda who is also secured to act as a panch witness to seizure mahazar at Ex.P18 and under that mahazar, auto-rickshaw bearing No.KA.05.AC.7964 is said to have been seized by the Investigating Agency pertaining to the case. In the cross-examination, he has deposed that it is false to suggest that on 30.05.2015 between 9.30 p.m. to 10.30 p.m., one Navaaz was with the custody of the police and accordingly, he showed auto bearing registration No.KA.05.AC.7964 pertaining to the case seized by the police by preparing the mahazar and after knowing the contents, he signed the mahazar.
19. PW.14 – Arjun Kumar who has been subjected to examination in respect of inquest mahazar at Ex.P19 and spot mahazar at Ex.P20 and these mahazars have been drawn by the Investigating Agency in his presence 29 and whereby he has subscribed his signature which are marked at Ex.P19(a) and Ex.P20(a). In his cross-examination, even though this witness identifies his signature, denies to have observed the cut injuries on the neck portion and on the right hand shoulder of the dead body, but specifically stated in his evidence that he does not know what materials police have collected but his signatures were taken by the Investigating Officer.
20. PW.15 – Rajendran having been secured to act as panch witness relating to the seizure mahazar of auto rickshaw which marked at Ex.P18 whereby the police obtained his signature and he has specifically stated that he do not know as to whom auto rickshaw belongs. But he identified the photographs of auto rickshaw which are marked at Exs.P21 and 22.
21. PW.16 – Samiulla was also examined on the part of the prosecution and whereby he has stated in his 30 evidence that he visited Electronic City Police Station for his personal work and at that time, the police obtained his signature at Mahazar.
22. PW.17 – V.J.Mithun Shilpi being IO in part has given evidence that on 08.05.2016 he received the case papers from CW.27 – Nagireddy being the Head Constable. Subsequently, he continued the investigation and during investigation he conducted inquest mahazar on the dead body of unknown male person in abandon cement roofed shed situated by the side of Nice Road, at Naidu Layout at Basapura village. He drew the mahazar at Ex.P19 and also mahazar at Ex.P20 in the presence of panch witnesses and so also mahazar at Ex.P27. But gave report identifying the dead body of Marappa and he recorded the statement of CW.20 – Doreswamy. But on 12.05.2016, the police personnel who were deputed for tracing of accused had apprehended them and produced Accused No.1 and 2 before him and he followed the arrest procedure. He 31 identified the voluntary statements of accused persons at Ex.P28 and 29 and his signatures were marked as Exs.P28(b) and P29(b).
23. Accused No.2 – Sadiq Ahemmed is also said to be participated with Accused No.1 – Rafeeq Alias Dobh to eliminate deceased – Marappa with the assistance of Accused No.3 – Mohammed Navaaz who brought the auto rickshaw and also carried the packet containing chilli powder and sprinkled chilly powder on the face of deceased – Marappa according to the meeting of minds of Accused Nos.1, 2 and 3. Accused No.2 held hands of deceased to his back side and Accused No.1 had mercilessly chopped the head and right hand part from the shoulder with means of long chopper. Subsequently carried the head part of Marappa and right hand severed part and threw into gutter where foul water was flowing with an intention of disappearance of evidence to screening from legal punishment. But no evidence has been let in by the 32 prosecution to prove the guilt of accused with beyond all reasonable doubt. But PW.19 being the FSL officer who was subjected to examination of certain items such as item Nos.1 to 13 which indicated in the report i.e., blood stained soil, control soil, hallow block, one cut opened Achi chilli powder packet, mud mixed chilli powder, one long, one shirt, one T-Shirt, one underwear, one T-shirt, one tooth, one right humerus bone and one left femur bone. Accordingly, PW.19 even though had been subjected to test as mentioned specifically in the report and also the scrapings and cuttings taken from the stained regions and swabs were also tested for the presence of blood stains by using Benzidine test. It was reported that from the chemical tests and the DNA profile examination of articles the blood stains were detected and the items at 1 to 13 were sealed and sent to police along with report which is marked at Ex.P13. Mere because subjecting to examination and also that there is some DNA profile, but unless there is corroborative evidence, it cannot arise for 33 securing conviction relating to murder of deceased – Marappa on the part of the prosecution theory unless the prosecution facilitates worthwhile evidence for securing conviction.
24. In support of his contention, counsel for appellants has placed reliance of 2022 LiveLaw (SC) 229 – Nandu Singh vs. State of Madhya Pradesh in Crl.A.No.285/2022 @ Special Leave Petition (Crl.)No.7998/2021. He submits that this reliance is squarely applicable to the given facts and circumstances of the case. It is held that the circumstances on record do not make a complete chain to dispel any hypothesis of innocence of the appellant. The prosecution having failed to establish through clear, cogent and consistent evidence, the chain of events, on the basis of which the guilt of the appellant could be established.
25. In the reliance of the Hon’ble Supreme Court reported in (2019) 3 SCC770– Ashish Jain vs. Makrand 34 Singh and others, relating to the concept of Section 27 of the Evidence Act it is held that, recovery of the stolen ornaments, etc. in the instant matter was made on the basis of involuntary statements, which effectively negates the incriminating circumstance based on such recovery, and severely undermines the prosecution case. This reliance is also squarely applicable to the given facts and circumstances of the present relating to the murder of deceased Marappa.
26. In a reported decision of the Hon’ble Supreme Court in Crl.A.No.1348/2013 – Shivaji Chintappa Patil vs. State of Maharashtra, it is observed that “it will also be relevant to refer to the following observations of this Court in the case of Gargi (supra): Insofar as the “last seen theory” is concerned, there is no doubt that the appellant being onne other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, 35 by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial Court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das v. State of Bihar (1974) 4 SCC193 27. Whereas at para 32 of the aforesaid reliance, it is observed that “it is more than settled principle of law that if two views are possible, the benefit shall always go to the accused. It will be apposite to refer to the observations of this Court in the case of Sharad Birdhichand Sarda. At para – 33 in the case of Devi Lal (Supra) observed that “that apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which 36 is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same.
28. The reliance of a Division Bench of this Court in Crl.A.No.100018/2015 dated 01.03.2017 is also produced by learned counsel for the appellants and submits that this judgment also squarely applicable to the given facts and circumstances of the case. These are all the reliances which are facilitated by the learned counsel for the appellants in support of his contention and same have to be considered and it requires intervention, if not, certainly there shall be substantial miscarriage of justice in respect of the accused who are facing of trial for the offence punishable under Sections 302 and 201 r/w 34 of IPC. He contends that the accused are in judicial custody since from the date of their arrest where the case was initiated in 37 the year 2016. Therefore, seeks for consideration of the grounds urged in this appeal and intervention of the judgment of conviction and sentence rendered by the trial Court by setting aside the same and consequently, acquit the accused for the charges leveled against them.
29. On the contrary, learned HCGP for respondent – State namely Smt.Rashmi Jadhav has taken us through the evidence of PW.10 being the Doctor who conducted autopsy over the dead body of Marappa and issued PM report as per Ex.P16. It is stated about the internal injuries Cranium and spinal canal described. Thorax also described, lungs pale cut section exudes minimal blood. Abdomen wall peritoneum intact mouth pharynx and esophagus intact. Viscera collected, preserved, labled, sent to FSL for chemical analysis along with sample seal. First molor tooth on left side lower jaw, right humerus and left femur bone collected, preserved labeled and sent to DNA laboratory for DNA analysis as per police requisition. 38 Fractured bone ends show blood extravasations. Injuries are ante mortem in nature. Insofar as external injuries in all 8 injuries were identified such as chop wounds, incised wound, vertically placed wound, stab injuries, chap wound measuring 15 cm x 12 cm and through present over the right shoulder. Right upper limb is separated from the rest of body. Injury no.7 is chop wound 15 cm x 12 cm through and through present over the right shoulder, underlying tissues, muscles and vessels, nerves and bone ends are exposed. Humerus is fractured at its upper part. Right upper limb is separated from the rest of the body. Margins are clean cut. Multiple superficial incised wounds ranging from 6 cm x 0.1 cm x sub-cutaneous tissue deep to 12 cm x 0.1 cm x sub-cutaneous tissue deep present over the upper part of front of chest over an area of 12 cm x 10 cm on right side. It is opined that death of deceased Marappa based upon the opinion of FSL examination of materials sent for chemical examination is due to shock and hemorrhage and as a result of multiple injuries. On 39 the evidence on record, it clearly indicates that death of Marappa was due to homicidal but not for any other normal circumstances.
30. PW.2 – Ashwathnarayana being the ASI, Electronic city police station who lodged first information report to the concerned police about murder. PW.3 Shivappa is the brother of deceased who is a circumstantial witness and who identified the dead body as his brother and given statement to the police at the time of inquest. PW.4 – Raja is another circumstantial witness relating to last seen with deceased – Marappa and also took the deceased in their auto rickshaw. PW.5 is the finger print expert who identified the dead body finger print of the deceased. PW.6 – Satynarayana is the ASI who was deputed to bring the post mortem report of deceased and who collected important organs of deceased for the purpose of FSL examination. PW.7 – Shivaraj is another ASI who traced accused Nos.1 and 2. PW.17 – V.J.Mithun 40 Shilpi is the investigating officer who conducted the entire investigation. He visited the spot at time of lodging of first information and he conducted inquest on the dead body in between 9.45 a.m. to 12.45 p.m. afternoon in the presence of witnesses. On the same day, he drew the spot sketch as per Ex.P27. On the same day, PW.5 – Thippeswamy is the finger print expert who visited the spot, took finger prints of dead body and gave report identifying the dead body as of Marappa. Therefore, from the testimony of PW.5 who stated that the finger print impression is tallying with the finger print impression of arrested accused in Cr.No.100/2008 of Thilaknagar police station and also tallying with the finger print impression of very same person who was arrested in Cr.No.344/2012 of Banashankari police station. He has been subjected to incisive cross-examination for having apprehending the accused in the above two cases. Therefore, from the testimony of PW.5 it is very much clear in the theory of the prosecution that dead body recovered from the spot did not 41 had head part and also the right hand portion, but it was the dead body of Marappa who was accused in the above said two cases. The testimony of PW.17 being the investigating officer secured the panch witnesses by issuing notice to them and accused No.1 and 2 came along with other members and also panch witnesses to the vacant land located near Nice road on Vittasandra, Subashnagar road. They entered inside the bush and picked 2½ feet length long chopper and produced before him. Accused No.1 picked up one cloth as the cloth worn by him at the time of commission of offence. On verification it was noticed it was full sleeve cream colour shirt and also found blood stains on it. At the same time accused No.2 had also picked round neck colour half sleeve T-shirt and produced the same as the T-shirt worn by him at the time of commission of offence. He seized the same and drew the mahazar in presence of panch witnesses. The same were marked as MO.3 to 5. This 42 witness was extensively cross-examined by the defense counsel, but nothing worthwhile was elicited.
31. Even PW.11 – Siraj Sharif and PW.12 – Munavar were secured as panch witnesses and in their presence inquest was done over the dead body of Marappa. Even in their cross-examination nothing has been elicited and it will not disturb the evidence of prosecution witnesses in toto. PW.17 being the investigating officer has recovered the severed head part and also right hand part of deceased – Marappa at the instance of accused Nos.1 and 2. He did almost all major investigation whereby his evidence has been corroborated with the evidence of PW.8 being the Head Constable. He collected the information about the accused No.3 through informants and apprehended him along with auto rickshaw. Since the auto rickshaw was used for commission of offence which belonged to accused No.3, was seized and drew the mahazar in the presence of PW.13, 15 and 16. They have been stated in their evidence 43 on the part of the prosecution to prove the guilt of the accused. These are all the evidence that has been appreciated by the trial Court in a proper perspective and more so, the prosecution has proved the guilt of the accused with beyond all reasonable doubt. Though the accused are in judicial custody even for more than six years, but for their involvement in the heinous crime of committing murder of deceased – Marappa whose head part was severed from the dead body and also severed right hand from the shoulder level which indicates the animosity in between accused persons and deceased – Marappa as where the deceased had some intimacy in talking terms with wife of accused no.2 namely Shaheena and he was closely moving her. In this regard, there was quarrel between accused Nos.1 to 3 and deceased Marappa and he was advised not to continue the same. Since, the deceased Marappa did not rectify himself and continued his habit of teasing and closely moving with the wife of accused No.2 – Shaheena, the accused persons decided to eliminate 44 deceased – Marappa and committed the heinous crime of murder by mercilessly decapitated his head and right hand from the shoulder level and the same was carried in auto rickshaw of accused No.3 bearing registration No.KA-05- AC-7964 and threw the severed head part and right hand shoulder part to the gutter where the foul water was flowing which indicates that accused were causing disappearance of the evidence to screening from legal punishment. These are all the contentions made by learned HCGP for State to support the impugned judgment of conviction rendered by the trial Court and more so, there is no perversity or absurdity in the impugned judgment of conviction which requires intervention for re- appreciation of evidence and so also, revisiting the impugned judgment though the case rests upon circumstantial evidence but the circumstances in respect of prosecution case are established by the prosecution by facilitating the worthwhile evidence. Therefore, in this appeal it does not arise for call for interference whereby the 45 trial Court was rendering impugned judgment of conviction by assailing justifiable reasons as well as sound reasons. On all these premise seeking for dismissal of this appeal being devoid of merits and to confirm the judgment of conviction and order of sentence rendered by the trial Court.
32. In this backdrop of the contention stoutly made by learned counsel for the appellants by referring to the aforesaid evidence which is stated supra and so also, the reliances which facilitated by the counsel and similarly, the learned HCGP for State, but from analyzing the evidence of each witnesses and also consequences of the case of prosecution it is required to sum up in totality of circumstances whether the prosecution has established its case with beyond all reasonable doubt. As already been stated by referring the evidence of those witnesses, it does not require for repetition of evidence, but the entire case of the prosecution rests on the circumstantial evidence. But 46 for arrival of a conclusion it requires formulating of point as whether the prosecution has proved its case beyond all reasonable doubt. Therefore, it is just and necessary even reiterating the evidence of PW.10 who conducted autopsy over the dead body and issued PM report. The specific allegation of the prosecution that deceased – Marappa was frequently eve teasing Shaheena who is the wife of accused No.2 and also closely moving with her. In that regard there was quarrel between accused No.1 to 3 and deceased Marappa. PW.1 – Ramanjini and PW.4 – Raja who intervened in the earlier quarrel that took in between accused persons and deceased and advised deceased not to continue the same. There was some habit which is contra to the mind of the accused Nos.1 and 2 and whereby deceased – Marappa had continued his habit of teasing the wife of accused No.2 and was closely moving with her. The same is seen in the evidence of the prosecution. Therefore, the accused decided to eliminate deceased – Marappa accordingly, there was meeting of 47 minds among accused persons. That on the fateful day of 07.05.2016 the accused persons had preserved long chopper and chilli powder packet in the auto rickshaw bearing registration No.KA-05-AC-7964 belonging to accused No.3. On the said day, the accused persons came to know that deceased – Marappa was present near Diary circle at Bangalore where deceased – Marappa, PW.1 – Ramanjini and PW.4 Raja were talking each other. On the same day, at 7.30 p.m. the accused persons visited the said place in the auto rickshaw and asked the deceased to accompany them in their auto since they had some work with him and also assured him to provide alcohol. Accordingly, they took the deceased along with them in the night hours to the abandoned house located at Naidu Layout towards northern side of Basapura Subhash Nagar road. They made deceased Marappa to consume alcohol and in the meanwhile, when the deceased was in intoxicated stage, then questioned the deceased some sort of objection to talk with the wife of accused No.2 – 48 Shaheena. At the relevant point of time, accused No.1 brought long chopper, accused No.3 brought chilly powder packet from auto rickshaw and sprinkled chilly powder on the eyes of deceased, accused No.2 held two hands of deceased Marappa firmly to his backside, in the meanwhile, accused No.1 chopped the head and also right hand of Marappa with long chopper that is he decapitated the head part of Marappa. Thereafter, the accused persons in order to destroy the evidence, took the chopped head and right hand in their auto and also removed the T-shirt from the dead body and threw the same to the gutter / raja kaluve whereby the foul water was flowing with an intention to destroy evidence and screening from legal punishment. The same could be seen in the evidence of prosecution. As at a glance of evidence and also close scrutiny of evidence it could be seen that as a prudent man quarrelling with deceased – Marappa in respect of closely moving with wife of accused No.2 and with intervention of PWs.1 and 4 that the earlier incident was 49 quelling by them. Though the evidence of PWs.1 and 4 and evidence of PW.17 inclusive of evidence of PW.19 having been closely scrutinized but insofar as the entire case rests upon the circumstantial evidence. From the evidence of PW.1 and 4 an inference it could be drawn that the accused persons and deceased – Marappa were living in their houses located in a closely area and deceased had easy access to the wife of accused No.2 to move with her closely. However, the said inference is corroborated by PW.3 – Shivappa and he has also stated in his evidence who subjected to examination on the part of the prosecution. But his brother Marappa started to reside in his house after release from jail and subsequently, he was living with his brother’s house adjacent to his house. Accused No.1 and 2, their mother, wife of accused No.2 were residing in one house. Accused No.1 – Rafeeq and deceased Marappa were in imprisonment in some criminal case and they were released from jail after completion of imprisonment period. Accused No.1, deceased Marappa, 50 mother of accused No.1 and others were living cordially at that time. This is one of the circumstance.
33. The second circumstance would be about the last seen theory. Keeping in view the entire evidence of the prosecution witnesses that on 07.05.2016 at 7.30 p.m. when PW.4 and Marappa were talking together, at that time accused No.1 to 3 visited the said place in the auto rickshaw of accused No.3 and took Marasappa on the guise of some work and also to provide alcohol. But PW.1 and 4 have not stated anything about the same. The next circumstance would be about recovery of long chopper and blood stained clothes of accused Nos.1 and 2 at their instance. As per Ex.P30, the seizure mahazar, the investigating officer has recovered the aforesaid articles near NICE road bridge on Vittasandra main road from the vacant land of Rajappa which has been produced by accused Nos.1 and 2 by picking in the bush. Looking into the testimony of PW.17 about recovery of above referred 51 articles at the instance of accused Nos.1 and 2 and moreover, as per the FSL report, blood stains were detected in the above referred seized cloths of accused Nos.1 and 2 and also long chopper used by them in eliminating deceased – Marappa.
34. The next circumstances would be about the recovery of head part of deceased and also right hand part from the shoulder inclusive of T-shirt of deceased at the instance of accused Nos.1 and 2. Even though at the instance of accused Nos.1 and 2 that PW.17 drew the mahazar in the presence of panch witnesses. PW.17 being the IO has done the major investigation and also in the matter of recovery is corroborated by the evidence of independent witness Munavar PW.12. He states that when he was going in his two wheeler vehicle, on the way he noticed gathering of people and some police near waste water flowing canal and as such to know that is going on, he stopped his vehicle. The police called him near waste 52 drainage water canal where the human head part was there and the police secured his signature. These are all the evidence that has been adduced by the prosecution to prove the guilt of the accused persons.
35. However, it is relevant to refer the reliance of Hon’ble Supreme Court reported in 1993 SCC (Cri) 123 (State of Tamil Nadu vs. Karuppuswamy) wherein the scope of Section 27 of the Evidence Act – murder and beheading – confessional statement made by accused leading to recovery of severed head of deceased and aruval (sickle) containing human blood – admissible under Section 27. This circumstance goes a long way to corroborate the case of the prosecution.
36. Insofar as motive fact the trial Court was referring to the reliance of 1972 Crl.LJ7(Udapypal Singh vs. State of UP) wherein it is held that “motive” and “opportunity to kill” assume when only circumstantial evidence is available insofar as criminal law, criminal trial, 53 circumstantial evidence, motive. In a case where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having a strong enough motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation, if any, of the accused exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be as so complete as to show that within all human probability the crime must have been committed by the accused.
37. In the instant case also there was some quarrel took in between deceased – Marappa and accused Nos.1 to 3 relating to deceased – Marappa making eve teasing of Shaheena who is the wife of accused No.2 and even on the advise of the accused persons, he continued his habit where he was living with her but even after advise he did 54 not change his habit and there was some meeting of mind to eliminate the deceased. Accordingly, accused No.1 sought assistance of accused 2 and by mercilessly assaulting with means of long chopper and also decapitated his head part and also severed his right hand from the shoulder level and threw chopped head part and also right hand to the gutter where the foul water was flowing. These are all the circumstances and also recovery of Auto rickshaw from the possession of accused No.3 which was used to transport chopped head, right hand and T-shirt of deceased from the place of murder to the place where the said parts of the body of deceased was thrown to the gutter where the foul water was flowing. These are the circumstances on the part of the prosecution had been seen and the other circumstances would be accused No.1 was involved in similar fashion of crime along with deceased Marappa and accused No.1 and deceased together served the sentence. But on careful screening of the case of the prosecution and the entire cross 55 examination, it could be seen that the accused persons have not taken specific defense to defend themselves from this case. Further no explanation has been offered on their part about recovery of head, right hand part and T- shirt of deceased and along with chopper and blood stained cloths. Nowhere had they stated that the clothes seized did not belonged to them and accused No.3 has not explained about seizure of auto rickshaw. However, deceased – Marappa who is a friend of accused No.1 and in turn was known to accused Nos. 2 and 3. But accused No.1 who mercilessly chopped the head part of deceased – Marappa and so also, right hand from the shoulder and those chopped body parts were carried in Autorickshaw of accused No.3 and thrown into gutter where foul water was flowing with an intention of disappearance of evidence and screening from the legal punishment. Therefore, a prudent man can see and also assess the evidence from the case of the prosecution as there was intention and motive factor to commit murder of deceased – Marappa by accused No.1 56 mercilessly with the assistance of accused Nos.2 and 3. However, evidence on record clearly indicates the active part of accused No.3 in committing murder of deceased – Marappa and he is the owner of auto rickshaw which has been used in the commission of offence and so also, the chilli powder was carried by the accused No.2 to sprinkle it on the eyes of deceased – Marappa and also made to consume heavy alcohol and when he was inebriated stage then accused No.2 held deceased – Marappa firmly to his backside, accused No.3 sprinkled chilly powder on the eyes of deceased and then accused No.1 who mercilessly assaulted deceased – Marappa with means of long chopper and decapitated his head part and so also, severed the right hand from the shoulder level. Therefore, a prudent man can infer that accused persons had an intention to eliminate the deceased and the same can be looked in the facts and circumstances of the case and so also, the evidence available on record which is facilitated by the prosecution to prove the guilt of the accused. However, it 57 is necessary to note Section – 3 of the Evidence Act, 1872 relating to proved, disproved and not proved. Even in the instant case the last seen theory and also the motive factor even there was meeting of minds in between the accused. Looking into the nature of crime, the accused persons with a common intention have committed the heinous offence of murder by mercilessly chopping the head part and so also, right hand from the shoulder part and to destroy the evidence from screening of legal punishment have thrown the chopped body parts of the deceased to the gutter where foul water was flowing. Therefore, there is no substance in the contention made by learned counsel for the appellants to call for interference and to re-appreciating the evidence and also to re-visit the impugned judgment of conviction and order of sentence. The trial Court has rightly convicted the accused persons for the aforesaid offences. In view of the aforesaid reasons and findings, we proceed to pass the following:
58.
ORDERCriminal appeal filed by the appellants/accused under Section 374(2) of Cr.P.C. is hereby rejected. Consequently, the judgment of conviction dated 23.10.2019 and order of sentence dated 28.10.2019 rendered by the IX Additional District and Sessions Judge, Bangalore Rural District, Bangalore in S.C.No.166/2016 is hereby confirmed. Sd/- JUDGE Sd/- JUDGE BSS/DKB