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State by Police Vs. Safvan Hussain @ Rajik - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberCRL.A 828/2013
Judge
AppellantState by Police
RespondentSafvan Hussain @ Rajik
Excerpt:
1 in the high court of karnataka at bengaluru dated this the28h day of february, 2020 r present the honble mr. justice s.n.satyanarayana and the honble mr.justice h.p.sandesh crl.a.no.828/2013 appellant between state by police circle inspector mulky circle mulky, d.k., mangaluru. (by sri. vinayaka v.s., high court government pleader) and1 2. safvan hussain @ rajik aged27years s/o. hammabba r/at koppala house haleyangadi post and village mangaluru taluk-574 146. samshuddin @ althafa @ althafa imran @ imran aged27years s/o. abdul khader r/at melangadi house near jumma mosque of davood complex2mukka, surathkal mangaluru taluk-575 021. @ sadhik aged34years s/o. mohammed r/at kadthoor house kammaradi village koppa taluk chikmagalore district-577 126. respondents3 moideen @ mayyadi (by sri......
Judgment:

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE28H DAY OF FEBRUARY, 2020 R

PRESENT

THE HONBLE MR. JUSTICE S.N.SATYANARAYANA AND THE HONBLE MR.JUSTICE H.P.SANDESH CRL.A.NO.828/2013 APPELLANT BETWEEN STATE BY POLICE CIRCLE INSPECTOR MULKY CIRCLE MULKY, D.K., MANGALURU. (BY SRI. VINAYAKA V.S., HIGH COURT GOVERNMENT PLEADER) AND1 2. SAFVAN HUSSAIN @ RAJIK AGED27YEARS S/O. HAMMABBA R/AT KOPPALA HOUSE HALEYANGADI POST AND VILLAGE MANGALURU TALUK-574 146. SAMSHUDDIN @ ALTHAFA @ ALTHAFA IMRAN @ IMRAN AGED27YEARS S/O. ABDUL KHADER R/AT MELANGADI HOUSE NEAR JUMMA MOSQUE OF DAVOOD COMPLEX2MUKKA, SURATHKAL MANGALURU TALUK-575 021. @ SADHIK AGED34YEARS S/O. MOHAMMED R/AT KADTHOOR HOUSE KAMMARADI VILLAGE KOPPA TALUK CHIKMAGALORE DISTRICT-577 126. RESPONDENTS3 MOIDEEN @ MAYYADI (BY SRI. SIRAJIN BASHA AND SRI. K.N. BALARAJ, ADVOCATES FOR R3 SRI. N.S. SAMPANGI RAMAIAH, AMICUS CURIAE FOR R1 AND R2) THIS APPEAL IS FILED UNDER SECTION3781) AND (3) CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED1503.2013 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU IN S.C.NO.29/2009 ACQUITTING THE RESPONDENTS/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS363 392, 302, 201, 75 READ WITH SECTION34OF IPC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON2701.2020 COMING ON THIS DAY, SANDESH J., PRONOUNCED THE FOLLOWING:-

"This appeal is filed by the complainant-State JUDGMENT challenging the judgment and order of acquittal dated 15.03.2013 passed in S.C.No.29/2009 on the file of III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru for the offences punishable under Sections 363, 3 392, 302, 201 and 75 read with Section 34 of Indian Penal Code. The brief facts of the case:-

"2. The factual matrix of the case is that one Praveen Shetty was appointed as a driver of Innova car bearing registration No.KA-20N-5557 belonging to one Shantharama Shetty, who has been examined as P.W.3. It is the further case of the prosecution that on 9.11.2008 at about 8.00 p.m., the said Praveen Shetty took the Innova car without informing the owner and he did not return. Hence, the owner Shantharama Shetty and his Manager by name Jeevandhar tried to contact the said driver through mobile phone, but they did not get any connection. Hence, P.W.3 - Shantharama Shetty gave instructions to his Manager P.W.1 to verify whether he has been to his native place i.e., Theerthahalli and on verification, it was found that he was not there in his village also. Hence, the complaint was lodged by P.W.1 to Mulki police at the instance of P.W.3 stating that the driver had stolen the car and hence, the case in crime 4 No.100/2008 was registered for the offence punishable under Section 381 of IPC at the First instance.

3. It is the further case of the prosecution that on 12.11.2008, when P.W.2 - Lokesh Shetty, who was the Sub Contractor residing at Kodikere, Kulai Village went near the granite quarry pond to wash his face along with three other persons, found one dead body with its hand up and so many flies were sitting on it. Then immediately, he telephoned the Surathkal police and they came to the spot. The Police Sub Inspector - P.W.24, who came to spot recorded the statement of P.W.1 and converted the said Crime No.100/2008 for the offences punishable under Sections 363, 379, 302 and 201 of IPC and sent a requisition to the Court in terms of Ex.P.76. Then he drawn mahazar in the presence of panchas and seized the clothes and other materials found on the dead body. He also recorded the statements of Shekhar Poojary and Lokesh Shetty and body was subjected to inquest and thereafter, sent the dead body for postmortem. He has also drawn panchanama as per Ex.P4. Thereafter, the accused persons were apprehended and their 5 voluntary statements were recorded and recoveries were made at the instance of the accused persons including Zen car which was used to rob the Innova car. The said Innova car and the weapons which were used to cause threat were also recovered.

4. The Investigating Officer completed the investigation and filed a charge sheet against the accused persons for the above offences. Accused Nos.1, 3 and 4 were secured and taken to judicial custody. Accused No.2 was absconded and hence, split up case was registered against him in S.C.No.149/2010. Accused Nos.1, 3 and 4 appeared through their counsel. The charges were framed against them and they did not plead guilty and claims to be tried.

5. The prosecution, in order to prove the charges, examined P.Ws.1 to 28 and also got marked documents Exs.P1 to 80, so also got marked material objects MOs.1 to 29 and closed the evidence on the side of the prosecution. The Trial Court recorded the statements of the accused persons under Section 313 of Cr.P.C. The accused did not choose to lead any defence evidence. However, got marked 6 Exs.D1 to 5 confronting the same to the prosecution witnesses.

6. The Trial Court, after having heard the arguments of public prosecutor as well as defence counsel, acquitted all the accused persons. Hence, the present appeal is filed before this Court.

7. This appeal has been filed by the complainant- State contending that the Trial Court has committed an error in not appreciating both oral and documentary evidence and the same has resulted in miscarriage of justice in acquitting the accused persons. The learned Judge, while acquitting the accused, has held that the case rests upon the circumstantial evidence and the prosecution has failed to prove its case. It is further contended that the Trial Court has failed to take note of the fact that all accused persons are habitual offenders and accused Nos.1 and 2 have been convicted in the earlier proceedings and they were released on probation invoking the Probation of Offenders Act. 7 8. The Trial Court also fails to take note of the fact that the vehicle was robbed by the accused persons and thereafter, they have murdered the driver of said vehicle by drowning in a pond and then tied the dead body with the help of rope and heavy stone to screen the evidence. The witnesses P.Ws.2 and 3 have categorically identified the dead body, which has not been properly appreciated by the Trial Court. The reasons given by the Trial Court in acquitting the accused are not legal and proper and the same has resulted in miscarriage of justice. It is also contended that P.W.8 is the Forest Guard, who has seen the accused driving Innova car with the deceased and he has given a pass to the said Innova car. He has identified all the accused persons along with the deceased. Inspite of that, the Trial Court did not consider the same.

9. It has been further contended in the appeal that the Trial Court has not appreciated the recoveries which were made at the instance of the accused persons. Though, P.W.23 the mahazar witness, has supported the case of the prosecution with regard to the recovery, the Trial Court has 8 committed an error in acquitting the accused persons, which is illegal and unsustainable in the eye of law. Non appreciation of the evidence of the prosecution in proper perspective has resulted in miscarriage of justice.

10. Sri Vinayaka V.S., learned High Court Government Pleader appearing for the State in his arguments vehemently contend that the incident was taken place on 9.11.2008, wherein the accused persons accosted the Innova car with its driver Praveen and thereafter committed the murder of said Praveen. They also used the said Innova Car for the purpose of robbing the Ford Fiesta car which belongs to P.W.15. He would further contend that the spot mahazar was conducted in terms of Ex.P52. When the accused persons were apprehended, they have shown the place of robbery of Innova car and to that effect Ex.P.52 mahazar was drawn. It is also contended that mahazar was drawn with regard to recovery of number plates original and manipulated at the instance of accused No.1 and he also shown the place, where the dead body was drowned, which is evident from Ex.P.53. The talwars which were used to 9 cause threat against the driver of Innova car was also seized by drawing mahazar in terms of Ex.P.54. The mahazar was drawn in terms of Ex.P56 with regard to the recoveries of talwars at the instance of accused Nos.2 and 3.

11. It is also contended that the belongings of the deceased i.e., his marks cards, certificates and clothes were seized at the instance of accused No.2 in his house and accordingly, Ex.P57 was drawn. Learned High Court Government Pleader would also contend that the Trial Court has committed an error in coming to the conclusion that the same has not been proved and place of recovery has not been stated, wherein the said approach of the Trial Court is erroneous which is against the documentary evidence. The Trial Court also while considering the recovery of talwars made an observation that talwars are not stained with blood and it is not the case of the prosecution that talwars were used for assaulting the deceased. It is the only case of the prosecution that talwars were shown only to cause threat to the driver of Innova car and such finding is erroneous. 10 12. Learned High Court Government Pleader would also contend that four mobile phones were also recovered by drawing mahazar in terms of Ex.P72 at the instance of accused No.1 and those phones were robbed from the lorry driver. The CD player, which was installed to Innova car was also seized at the instance of accused No.4 so also the mobile phone was seized at his instance and mahazar was drawn in terms of Ex.P.73. The evidence of Executive Magistrate, who conducted the Test Identification Parade, has not been appreciated by the Trial Court properly. The Trial Court has committed an error in not considering both oral and documentary evidence available on record.

13. Per contra, learned counsel for accused Nos.1 and 2 as amicus curiae in his arguments vehemently contend that the incident was taken place on 9.11.2008 and complaint was lodged on 10.11.2008 and dead body of the deceased Praveen was found on 11.11.2008. The prosecution has mainly relied upon the evidence of P.Ws.8 and 25 with regard to identification of the accused persons. P.W.8 is a Forest Guard working in the check post and his evidence 11 does not inspire the confidence of the Court with regard to identification of the accused persons. P.W.25, who has been examined before the Court states that he saw the car on 11.11.2008 in front of Mulki police station, but according to the prosecution, the said Innova car was seized on 12.11.2008. Hence, his evidence also cannot be believed. P.W.14 Tahasildar, who has been examined before the Court has conducted the Identification Parade of the accused. However, his evidence also does not inspire the confidence of the Court. These accused persons have been falsely implicated in the case. None of the witnesses have identified these accused persons.

14. P.W.20, who seized the Innova car also did not identify the accused persons though he claims that he had seen the accused persons. However, his evidence also does not inspire the confidence of the Court. The mahazar was drawn with regard to seizure of Zen car and though P.Ws.5, 6 and 7 have been examined, they did not support the case of the prosecution. Ex.P47 is in respect of recovery of Innova car. With all these recoveries, the prosecution also relied 12 upon the evidence of P.W.23, who is a stock witness. He also hails from the village which is located at a distance of 10 to 14 kilometers from the police station and his evidence also does not inspire the confidence of the Court. The Trial Court has properly appreciated both oral and documentary evidence and rightly came to the conclusion that accused persons have not been identified. The mahazars which were drawn and the Identification Parade which was conducted by P.W.14 have not been proved and so also the recoveries made. The Trial Court has given anxious consideration to both oral and documentary evidence and rightly acquitted the accused persons.

15. Learned counsel appearing for accused No.3 in his arguments vehemently contend that P.W.3 in his evidence states that he called the driver at 11.00 p.m., but it is the case of the prosecution that vehicle was robbed on that night at 9.00 p.m. itself and if the vehicle was robbed at 9.00 p.m. itself, how P.W.3 could speak to the driver as it has been stated by P.W.3 in his evidence that when he asked the driver as to his whereabouts, he replied that the vehicle is 13 punctured and he would return. When such being the case, the case of the prosecution cannot be believed. P.W.21 who arrested the accused persons has falsely implicated them in the case on hand since accused Nos.1 and 2 are the accused persons in other small offences. The prosecution relied upon the evidence of P.W.15, but in the cross-examination with regard to identification of the accused persons, he did not identify them and when such being the case, evidence of P.W.15 cannot be believed. It is the case of the prosecution that recoveries were made at the instance of accused persons and the same is hit by Section 27 of the Indian Evidence Act.

16. The evidence of Investigating Officer, who has been examined as P.W.27 does not inspire the confidence of the Court. When the case rests upon the circumstantial evidence and there is no link with reference to the same and when the material objects which have been produced before the Court are nothing to do with the murder, the Trial Court has rightly acquitted the accused persons. 14 17. In reply to the arguments of the learned counsel appearing for the respondents/accused, learned High Court Government Pleader appearing for the State would contend that the Trial Court did not consider mainly the evidence of P.Ws.1, 2, 3, 8, 14, 15, 21, 23 and 27 and has also failed to take note of the contents of Exs.P52 to P57, P72 and P73 since mahazar witness P.W.23 supported the case of the prosecution. Nothing has been elicited in the cross- examination of P.W.23 to disbelieve regarding the recoveries and the same has not been appreciated by the Trial Court.

18. Having heard the arguments of the learned High Court Government Pleader appearing for the State/appellant and learned counsel appearing for the respondent No.3, so also learned amicus curiae appearing for respondent Nos.1 and 2, this Court has to re-appreciate the material evidence available on record both oral and documentary evidence since this Court has got powers to re-appreciate the same in order to come to a right conclusion as to whether the Trial Court has committed an error in not appreciating both oral and documentary evidence as 15 contended in the appeal. So also this Court has to take note of the contentions of the counsel who appears on behalf of the accused. Keeping in view of the contentions of learned High Court Government Pleader appearing for the State and learned counsel appearing for respondent No.3 and learned amicus curiae appearing for respondents No.1 and 2, the points that arise for consideration of this Court are:-

"1. Whether the Trial Court has committed an error in acquitting the accused persons for the charges leveled against them and whether it requires interference of this Court?.

2. What order?.

19. Before appreciating the materials available on record, this Court has to consider first the oral evidence, which is available on record. The prosecution has examined P.Ws.1 to 28 and also got marked Exs.P1 to 80, so also marked the material objects MOs.1 to 29. Now this Court has to consider the evidence of each of the prosecution witnesses. 16 20. P.W.1 Jeevandhar, working as a Manager with P.W.3 gave complaint at the first instance in terms of Ex.P1 stating that since the deceased Praveen who had taken Innova car did not return back and also his whereabouts were not known, under the impression that he might have stolen the said Innova car, he lodged complaint before the Mulki Police Station on the instructions of the owner on 10.11.2008 at about 9.30 p.m. He also identifies his signature at Ex.P1(a). It is also his evidence that based on the said complaint, police came to the spot and conducted spot mahazar in terms of Ex.P.2 and he has shown the place of car, where it was parked on that night before taking the said vehicle. He identifies his signature at Ex.P.2(a). He further stated that they searched for the deceased Praveen and also for the Innova car thereafter. On 12.11.2008, hearing the discussion held among the people of the village that a dead body is found near the pond of a granite quarry, he went near the spot and on seeing the face and clothes of the dead body, he identified the dead body as that of deceased Praveen. The hands and legs of the dead body of 17 deceased Praveen were tied. Witnessing the same, they felt that the Innova car is robbed by murdering Praveen.

21. P.W.1 was subjected to cross-examination. In the cross-examination, he states that he cannot tell as to which type of dress Praveen used to wear. The car belongs to owner Shantharama Shetty. It is also elicited that Shantharama Shetty has instructed him to give complaint and hence, he has given the complaint. It is suggested that the police have taken his signature on the blank paper of Ex.P2 and later prepared the same and the same was denied. He admits that after lodging complaint, police did not accompany them to search the driver Praveen so also the car, but Prashanth Bhaskar and other two to three persons have accompanied him. He also states that in Ex.P1, he has given the mobile number of the said Praveen. It is elicited in the cross-examination that when he went near the quarry and having seen the side face of the dead body and also the clothes on it, he identified the dead body as that of driver Praveen. When he saw the dead body of Praveen, its face and eyes were swollen but aquatic species have not eaten 18 away the same. It is suggested that his boss is involved in the act of murdering the said Praveen and the said suggestion was denied.

22. P.W.2 is the person who first found the dead body on 12.11.2008, when he went near the quarry to wash his face after his early morning walk. Immediately he gave information to the Surathkal police and the police came to the spot and conducted mahazar and took his signature. This witness had turned hostile and he was cross-examined by the Public Prosecutor.

23. P.W.3, the owner of Innova car, in his evidence, he states that the said Praveen was appointed a week before the incident took place. He was staying in the basement of his house and his belongings were usually placed in the car itself. It is also his evidence that in the evening of 9.11.2008, after returning, he was taking rest in his house. On that evening at about 8.00 p.m., the said Praveen had taken the car towards Surathkal. When he did not return the car till 10 to 11 p.m., he tried to reach him over the phone. When he called him over the phone, he stated that the tyre of the car 19 got punctured and he would return and thereafter, he slept. When Praveen did not return in the morning also, he tried to reach him over the phone but could not connect. He asked Jeevandhar-P.W.1 to search for the said Praveen in Theerthahalli Village before he lodges complaint, but he could not find his whereabouts. On the next day of lodging the complaint, he came to know that the said Praveen was murdered and his dead body was found in the pond of a granite quarry. It is also his evidence that Innova car was seized and the same was brought to police station. It is further stated that the number plate of his car was changed to No.KA-21-N-6078 and sticker was pasted to avoid the identification of the persons sitting inside the car. He also stated that he had installed CD player of the Pioneer Company to his car but when he saw the car in the police station, the said CD player was not there. After few days, police showed the said CD player to him and he identified the same. It is also his evidence that the original number plate of his car bearing registration No.KA-20-N-5557 was found in the boot (dickie) of the car. He also states that C.W.12 Prashanth Bhaskar got released the car and the said CD20player from the Court. He further identifies the two number plates and car as MOs.1, 2 and 3.

24. P.W.3 was subjected to cross-examination. In his cross-examination, it is elicited that he was not enquired by the police in the police station. It is elicited that M.O.3 was released from the Court and hence, he went to police station to bring the same. It is elicited that the driver took the vehicle without his consent. It is elicited that on 11.11.2008, he went to Mulki Police Station and gave the statement. It is elicited that he did not make the statement before the police that the value of the car is Rs.10,000/- in terms of Ex.D.1. It is also elicited that M.O.1 and M.O.2 number plates are prepared from R.K. of Kodialbail. It is suggested that M.O.3 does not belong to him and the same was denied. It is suggested that in collusion with the Mulki police, he obtained M.O.3 and that the same belongs to him, and the said suggestion was denied. It is suggested that M.O.1 and M.O.2 were prepared while taking the car from the police station, and the same was denied. He admits that he was not called near the quarry. It is suggested that P.W.1 was not working 21 as Manager with him, and the same was denied. He admits that he went and saw the car 15-20 days after the car was missing.

25. P.W.4 is the spot mahazar witness. In his evidence he states that P.W.1 had shown the place from where the car was taken. The police have drawn the mahazar and obtained his signature and he identifies his signature on the mahazar Ex.P.2, and the same is marked as Ex.P.2(b). He also states that he was called near the place where the body was found to identify the dead body. By that time, P.W.1 - Jeevendar and Sharath Shetty - C.W.14 were also there along with him. He found the body in the quarry place. The same was removed and stones were tied to the said body. It is also his evidence that a rope was tied on the waist. The body contains half arm shirt and also black pant and a watch. The body was swollen including the eyes. P.W.1 has identified that the said body belongs to the driver of Shantharam. The police have seized the clothes, stone and also he has signed the said mahazar, which contains his signature as Ex.P.4(a). The other witnesses P.W.1 and C.W.14 have also signed the 22 said mahazar. He also identifies the signature on the slip pasted on the sealed packet. He identifies the shirt as M.O.4 so also black pant as M.O.5. Underwear is marked as M.O.6 and also identifies the watch, which is marked as M.O.7. He also identifies the rope as M.O.8. He identifies two stones, one small in size and another big in size as M.O.9. Nylon rope is marked as M.O.10 and so also another rope as M.O.11. He also states that he has obtained the C.D. player and Innova car based on the power of attorney given by P.W.3. He identifies M.O.3 car and so also number plate KA-21-N- 6078 and identifies the same as M.O.12 and M.O.13. He was subjected to cross-examination.

26. He admits that his residence is situated at about 4- 5 kms. from the Mulki Police Station. He admits that he does not know who had seen and identified the dead body at the first instance. He did not see the driver of P.W.3 on the date of the incident. He does not know the date on which he was called near the quarry. He does not know who removed the body from the quarry pond. It is suggested that body was not in a position to identify, since the same was inside the 23 water for a period of three days, and the said suggestion was denied. He admits that he cannot tell the name of scribe of Exs.P.2 and 4. He states that he was there near the quarry from 11.00 a.m. to 2.00 p.m. He also states that the said place of quarry is situated 4-5 kms. from his house and there is a public road near the said place. He admits that he does not remember where he has signed the chits, which were pasted on the pockets of M.O.4 to M.O.11. However, he categorically states that he had seen M.O.4 to M.O.11 when he saw the dead body. Prior to that, he has not seen the same. It is suggested that he did not go to the place where they used to park the car, and the same was denied. It is suggested that he did not go to the place where the body was recovered, and the same was denied. It is suggested that he signed Exs.P.2 and 4 in the police station, and the same was denied.

27. P.W.5 in his evidence states that black Maturi Zen car belongs to his brother Shamshuddin, which bears registration No.KA-19-P-3839. His brother stays in abroad. His brother gave instructions to him to take care of his car. 24 He does not know C.W.20. He states that he has not seen C.W.21. He has not given the said car for hire purpose or any other purpose. He states that three years ago, Mulki police told him to bring the car to the police station and when he took the car, the police told that the said car is required in connection with criminal case. He also states that, at that time C.W.18 and others have accompanied him. He identifies his signature in Ex.P.5 as Ex.P5(a). He states that he did not produce the said car before the Court, since the car was seized by the Bank. However, he admits that the said car was taken to his custody through the Court. He identifies Exs.P.6, 7 and 8 photographs and states those photographs pertain to the car of his brother. He states that the police have not recorded his statement. He was treated as hostile.

28. In the cross-examination, it is suggested that he had given the car for hire purpose for an amount of Rs.600/- per day to Riyaz, who came along with Naushad and the suggestion was denied. He had obtained an amount of Rs.1,600/- instead of Rs.2,000/- and he has given the 25 statement before the police in terms of Ex.P.9. The said suggestion was denied.

29. P.W.6 in his evidence states that he was not called by police but P.W.5 took him to the police station saying that he was called in connection with the car. He states that the car belonging to P.W.5 was in the police station and the police have obtained his signature. He does not know the contents of Ex.P.5. However, he admits his signature as Ex.P.5(b). He also identifies that the said car was in the police station when he went along with P.W.5. He was treated as hostile.

30. In the cross-examination, a suggestion was made that P.W.5 has produced the Zen car and mahazar was drawn in terms of Ex.P.5 and he put the signature to Ex.P.5 and the same was denied.

31. P.W.7 in his evidence states that he was not called by police. He states that two years back, P.W.6 called him to go to the police station and hence he accompanied him. He did not see anything in the police station, but they were 26 talking to each other. They have obtained the signature and he did not see any four wheeler. However, he admits his signature in the mahazar and also he has signed the mahazar in the police station. He does not know the contents of Ex.P.5. He was treated as hostile 32. In the cross-examination, a suggestion was made that P.Ws.5 and 6 went to police station and P.W.5 has produced the Zen car in the police station and mahazar was drawn and he has signed the same, and the said suggestion was denied. He admits that photographs Exs.P6 to 8 and the said car was there in the police station when he went to the police station.

33. P.W.8 is the Forest Guard. In his evidence he states that he is working as Forest Guard for the last nine years. That on 11.11.2008, he was on duty at Mala check post and along with him Rajendra and Akhil were also there. He was checking the vehicles which were passing through the said gate. He was also making entry of vehicle numbers and also they used to give pass to the vehicles passing from Bajagoli to Shringeri. The people should produce the said 27 pass in the next check post. Similarly, they should also produce the said pass in the other check post and verifying the same, they used to leave the vehicles. That on 11.11.2008, at around 3.32 a.m., they have verified Innova black colour car bearing number KA-21-N-6078 and have given the pass. There is an entry for having given the pass in the register at Sl.No.128. In the said vehicle, there were four persons including the driver. The said vehicle came back at around 9.30 a.m. from Shringeri. The said vehicle was also subjected to verification at 9.30 a.m. and there was one driver and three persons. The same persons who went in the early morning were there in the said vehicle. They also made an entry for having given the pass. The said register is marked as Ex.P.10, subject to objection, which is in respect of Sl.No.128. The other entry in the register is marked as Ex.P.11, subject to objection. In the said register, Sl.No.120 is mentioned in respect of the very same vehicle bearing registration No.KA-21-N-6078. The same is marked as Ex.P.11(a). He also states that he can identify the persons who were there in the car and he identifies all the three accused persons who were present before the Court and also 28 states that he can also identify another person. This witness was subjected to cross-examination.

34. In the cross-examination, he states that the Investigating Officer came and enquired him on 11.11.2008. The original entries in Exs.P10 and 11 may not be there in the office. He admits the entries made in red ink in Exs.P.10 and 11 are not in his handwriting. He admits that he has not taken the address of the persons who were there in the car. He further admits that when the police requested Exs.P.10 and 11, on that day itself he has given the copy. But he did not give the description of the persons who where there in the car and they also did not ask the descriptions. He admits that in Exs.P.10 and 11, date is not mentioned as 11.11.2008. It is suggested that the Investigating Officer has threatened to give Exs.P.10 and 11, hence they have given the same, and the same was denied. He admits that these accused persons were not seen prior to 11.11.2008 and also subsequently. He admits that in Exs.P.10 and 11 they have not mentioned that there were three persons excluding the driver. 29 35. P.W.9 in his evidence states that he has not seen accused Nos.1, 3, 4 and C.W.21. He does not know whether P.W.5 was having car or not. Accused No.1 also did not mention that he is in need of the car for marriage purpose. He also states that he did not arrange for car to him. He was treated as hostile.

36. In the cross-examination, a suggestion was made that he was having acquaintance with accused No.1 and C.W.21 and he made the arrangement for car in favour of accused No.1 for an amount of Rs.1,600/- and he has given the statement before the police in terms of Ex.P.12, and the same was denied.

37. P.W.10 in his evidence he states that he does not know P.W.9 Naushad. He knows driving and he has not seen accused Nos.1, 3 and 4 at any time. He does not know P.W.5. The car which appears in Exs.P.6 to 8 was not driven by him at any point of time. Accused Nos.1 and 3 did not ask anything about the car when he was talking with P.W.9. 30 Accused Nos.1 and 3 have not given Rs.3,000/- to P.W.9 in his presence. He was treated as hostile.

38. In the cross-examination, a suggestion was made that when he was talking with P.W.9 - Naushad, accused persons came and enquired about the car for hire purpose and at that time P.W.5 demanded Rs.600/- per day. It is suggested that accused No.1 was in need of car for ten days and requested to reduce the rent and an advance of Rs.3,000/- was given and Naushad was not knowing to drive the car. Hence, he went to P.W.5 and took the car by giving advance of Rs.3,000/- and thereafter took the car and gave the car to accused No.1, and the said suggestion was denied. In this regard, he has given statement in terms of Ex.P30, and the same was denied. It is also suggested that he took the car which is shown in Exs.P.6 to 8, and the same was denied.

39. P.W.11 photographer and videographer in his evidence he states that he used to take photographs and also making videographs. He does not know Hamid. But he took him for videographing of the marriage and he has given the 31 DVD of the marriage ceremony. He did not observe the car and its number. He further states that he did not identify the car, which was videographed at the time of marriage. He was treated as hostile.

40. In the cross-examination, he admits that he has seen Maturi Zen car bearing No.KA-19-P-3839 in the videograph and he can identify the said car. The said car was used at the time of marriage. He has kept the video cassette somewhere and if the Court needs it, he can find and place before the Court. In this regard, he gave the statement in terms of Ex.P.14, and the same was denied.

41. P.W.12 in his evidence states that three years ago, Belthangady police have called him near the village of Kashibettu and the police have seized the car. The police took his signature in this regard. He cannot tell the description of the said car and number. The said car was locked and he does not know what were all seized. He was treated as hostile. 32 42. In the cross-examination, he admits that the vehicle was parked in Kashibettu village on 12.11.2008, which was facing towards the west. The same was black colour Toyota car. The vehicle was bearing registration No.KA-21-N-6078. The said vehicle was subjected to inspection and found 38 feet yellow colour nylon rope, 1 ft. iron chain, 7 ft. of green pipe, 35 litres of white empty can and police have drawn the mahazar and seized the same, and the same was denied. The witness volunteers that only his signature was taken. It is suggested that himself and Muttappa have signed the same, and the said suggestion was denied. However, he admits that without seeing the contents of the documents, he has signed the same.

43. P.W.13 is Dr. Jagadish Rao, who conducted post mortem on 12.11.2008. He states that he conducted the post mortem from 3.30 p.m. to 4.45 p.m. at Government Wenlock Hospital, Mangaluru. He identifies his signature in post mortem Ex.P.17 as Ex.P.17(a). He also states that after obtaining the RFSL report, he has given the cause of death in terms of Ex.P.18 and identifies his signature as Ex.P.18(a). It 33 is also his evidence that at the time of examination, the deceased was dressed with grey black coloured half sleeve shirt, grey coloured pant and brown coloured underwear. Black coloured sacred thread was found loosely encircling his neck. Red and black coloured sacred thread was found encircling around his right waist. He did not find neither the ligature material tied around his neck nor to his hands, legs and waist. However, according to the police, hands, legs and waist was tied with ligature when it was recovered and photographs of the scene were provided to him for perusal. Entire body was bloated with putrefied gas with extension of both upper limbs with slight flexion at the hip and knee joint. Marbling seen all over the front of chest and abdomen. Face was bloated with greenish black discolouration. Both eyeballs protruded. Lips swollen with tongue protruded out. Scalp and body hairs were easily pluckable. Slippage of skin all over the body with evidence of palm and soles detached from both hands and legs respectively. The skin all over the body was crepitus on palpation (due to putrefaction). Scrotum distended with putrefied gas. No evidence of external injuries 34 over the body. No evidence of peri oral injuries. No evidence of ligature mark around the neck.

44. He opined based on autopsy that the deceased died due to homicidal drowning. Time since death is 48 to 72 hours prior to the conduction of postmortem. After receiving the report from RFSL, he has given the final opinion as to the cause of death that the deceased died due to homicidal drowning. He identifies his final opinion as Ex.P.18.

45. In the cross-examination, he admits that putrefaction is nothing but decomposition. It is suggested that because the police have given instruction, he has said it was a homicidal drowning, and the said suggestion was denied. It is true that he has received the information from the police that unknown miscreants strangled the deceased with ligature and disposed in a pond. He further admits that to begin decomposition various stages have to be passed namely, commencement of rigor mortis, development of rigor mortis in the entire body, retention of rigor mortis, disappearance of rigor mortis and final stage is decomposition. He admits that since he has received the 35 decomposed body, the earlier stage of rigor mortis cannot be appreciated. There was no evidence of external injuries over the entire body. No ligatures were shown to him by the police officers. The mechanism of death is acute drowning is irreversible cerebral anoxia. He admits that for decomposition of the body in the water takes double time what could be in room temperature.

46. P.W.14 Tahsildar in his evidence has deposed that in terms of the order of the Civil Judge and JMFC, Mudabidre, he conducted the test identification parade in the District Jail, Mangaluru on 10.12.2008. It is his evidence that he called six witnesses. That on 10.12.2008, in the District jail he called accused No.1 and made him to stand along with other seven inmates of the jail. Accused No.1 was made to stand at Sl.No.4 in the said row. The witness Raju was called and formal questions were put to him and was asked whether he can identify the accused, but he did not identify. Thereafter, he was sent out. Again accused No.1 was made to stand at Sl.No.2 in the row. Second witness Harish Nayak was called and he identified accused No.1. Accused No.2 36 Ismail Arif was called and was made to stand as second in the row along with other seven inmates. The first witness Raju did not identify him, but the second witness Harish Nayak identified accused No.2. Accused No.3 was called and as usual witness Raju did not identify accused No.3 and the second witness Harish Nayak identified him. Accused No.4 [email protected] [email protected] Sadhik was called and made to stand along with other inmates of the jail and first witness Raju did not identify him and as usual the other witness Harish Nayak identified him. The said test identification parade was conducted between 11.30 a.m. to 12.30 p.m. Through this witness documents Exs.P.19 and 20 are marked. Ex.P.21 is also marked and it contains the signature of the witness as Ex.P21(a).

47. The other test identification parade questionnaire was given to Harish Nayak in terms of Ex.P.22 and he identifies the signature as Ex.P.22(a). The questionnaire and answer of the witness Raju was also marked as per Ex.P.23 which contains his signature. The other questionnaire in respect of Harish Nayak is marked as Ex.P.24 and in respect 37 of the witness Raju, it is marked as Ex.P.25. It contains his signature. The other questionnaire is marked as Ex.P.26 in respect of Harish Nayak and his signature is marked as Ex.P.26(a). The other questionnaire of witness Raju is marked as Ex.P.27 and signature is marked as Ex.P.27(a). The questionnaire of Harish Nayak is marked as Ex.P.28 and his signature is marked as Ex.P.28(a). The PSI of Belthangady was not subjected to test identification parade as he was preoccupied to give evidence in Hassan Court.

48. The other witness Sridhar Poojary S/o Shanthappa Poojary was called and accused No.1 was made to stand in the second line along with other seven inmates of the jail and he did not identify accused No.1. The witness Sathish Anchal was called and he identified accused No.1 and other witness Vinod Kumar was called and he also identified accused No.1. The witness Sridhar Poojary identified accused No.2 and the third witness Sathish Anchal also identified accused No.2. The other witness Vinod Kumar also identified accused No.2. Accused No.3 Samshuddin was also called and in the test identification parade. The witness Sridhar Poojary did not 38 identify him and so also other witness Sathish Anchal. The other witness Vinod Kumar identified accused No.3. The witness Sridhar Poojary was unable to identify accused No.4. The other witness Sathish Anchal identified accused No.4. The witness Vinod Kumar also identified the accused Moideen. This test identification parade was conducted in between 12.30 p.m. to 2.00 p.m. The witness also identifies his signature in Ex.P.29 and also his report in terms of Ex.P.30 and identified his signature as Ex.P.30(a). The questionnaire of the respective witnesses have been marked as Exs.P.31 to 42 and he identifies the relevant signatures as Exs.P.31(a) to 42(a). He was subjected to cross-examination.

49. In the cross-examination, he admits that he did not mention the height of each of the accused persons in his report. He also states that in his report he did not mention the description of seven inmates of jail. He admits that he has received the request from Circle Inspector of Kapu and also Circle Inspector of Mulki dated 21.11.2008 and 25.11.2008 respectively. He admits that the test identification proceeding is not in his handwriting, but he 39 states that the questionnaire are in his handwriting. He admits that in Ex.P.21, the signature of witness Raju is in different ink. He admits that he does not remember who had typed Exs.P.20 and 30. He admits that he did not see the accused persons prior to test identification parade. He also admits that he has no documents for having sent the summons to the witnesses. He did not see the documents pertaining to the identity of the witnesses who had been called for test identification parade.

50. P.W.15 is the owner of Ford Fiesta car bearing registration TN-47-R-8139. It is his evidence that on 8.11.2008, he went to Tamil Nadu to attend the marriage and thereafter he left his car in Mangalore Cauvery Ford Showroom for service. That on 11.11.2008, he came to Mangalore from Tamil Nadu in rail at 5.00 a.m. Uday Kumar had already brought his car to his residence and hence he went to his house and started his journey in the early morning at 5.45 a.m. towards Udupi. When he was proceeding towards Udupi, almost 4 kms. after Padubidri, he found black colour Innova car parked on the road side. A40person came out from the Innova car and asked whether he has got tools and he replied removing the glass that he does not have the same. In the meanwhile, three persons came out from the car and entered inside his car from left door and tried to pull him. When he screamed, no one came to his rescue since it was 6.45 a.m. All of them dragged him to back side seat, made him to sit in the place where space is provided to put the legs and took his car. The accused persons also robbed his gold chain, Nokia N-72 mobile, an amount of Rs.800/-, which was in his purse, ATM card and PAN card. All of them brought the car to Mangalore and they enquired about his ATM pin number and among them two of them went to bring money from his ATM card. He gave the wrong ATM pin number. By that time, he escaped from the back door of the car. While escaping, the persons who were in the car tried to hold him by catching his shirt and in that process, his shirt was torn. He had also sustained injury on his face and nose. He took the treatment at SVS hospital. The police came and recorded his complaint. The car number of Innova car, which was parked in front of his car was bearing registration number KA-21-N-6078. He saw that car 41 in Padubidri Police Station. The stereo which was in his car was installed in the Innova car. It is also his evidence that when he was called to Mulki police station, he identified his gold chain, mobile, but he did not find ATM card. He can identify the said persons. He identifies three persons and also he states that if he sees other person also he can identify. He also states he can identify Innova car, which was parked in front of his car.

51. He was subjected to cross-examination. He admits that he was examined in Padubidri crime case. He admits that the robbed things are not before the Court. He states he was called to test identification parade, which was held on 10.12.2008 in Mangalore Sub Jail. It is his evidence that he has not given any statement before the Mulki police. The evidence which he has given before the Court is not stated before the CPI of Mulki Circle. He admits that he has not made the statement before the police that he went to Tamil Nadu to attend marriage leaving the said car in Mangalore Ford Workshop as mentioned in his statement as per Ex.D.2. He also admits that while making the statement before the 42 police, he did not make any statement that his friend Uday Kumar had already brought the car from the workshop to his house. He does not know whether he made the statement before the CPI that his car was robbed when he was proceeding to Udupi. He states while robbing his car, some people were there and again he states that tempo was there. He admits that he did not make any statement before the CPI that he had screamed at the spot and so also he did not make any statement with regard to robbing of his money and other personal things. It is also his evidence that he did not make the statement that one was riding the car and when other two of them went to bring money from ATM, at that time he escaped from the spot in terms of Ex.D.3. He further admits that he did not witness two persons who were proceeding towards ATM, but he heard their conversation. He also admits that he did not make statement in terms of Ex.D.4 that he was made to sleep forcibly inside the car.

52. P.W.16 is examined with regard to changing of number plate. He did not support the case of the prosecution. However, he admits that the police have 43 recorded his statement. He also states that he does not remember regarding the Tahsildar calling him to test identification parade. However, he admits his signature available on Ex.P.31, which is marked as Ex.P.31(b). He also admits his signature on Ex.P.34, which is marked as Ex.P.34(b) so also on Ex.P.37 which is marked as Ex.P.37(b). He also admits his signature on the questionnaire Ex.P.40 and his signature is marked as Ex.P.40(b). But he claims that he does not know the contents of Exs.P.31, 34, 37 and 40 and also he does not remember where he has signed the said documents. He was treated as hostile and cross-examined.

53. A suggestion was made that on 20.11.2008, he made the statement before the police that on 10.11.2008, at around 11.00 a.m., four unknown persons came and requested him to prepare the number plate and when he asked the car they told that the same met with an accident and the vehicle is in the show room for repair and he can identify the said persons. He states that he has not given such statement before the police in terms of Ex.P.43. It is suggested that Exs.P.31(b), 34(b), 37(b) and 40(b) are 44 signatures made by him and thereafter he wrote his name below his signature and he states that he does not remember the same.

54. P.W.17 did not support the case of the prosecution with regard to that he had affixed cooling sheet on the Innova car. He states that he does not remember four unknown persons requested him. It is also his evidence that Innova car bearing number KA-21-N-6078 was not brought to his shop. However, he admits that he was called to Mangalore Sub Jail for identification of the accused persons. But he does not remember the date. He did not identify any of the persons. He was treated as hostile.

55. In the cross-examination, it is suggested that four unknown persons came and got fixed the cooling sheet on the Innova car and also he made the statement before the police that he can identify such persons in terms of Ex.P.44 and he denies the same.

56. P.W.18 is the father of the deceased. He states that his son was working as driver with P.W.3 from last 15 45 days prior to his death. The police, who came to his house at the first instance told that his son took the car of Shantarama Shetty. He came and met P.W.3-Shantarama Shetty in his house. By that time, he came to know that his son was murdered near the quarry pond and body was there in the said spot. Hence, he went near the quarry pond and found the dead body. He found the clothes and watch on the dead body and he identifies the said dead body. He also identifies M.O.7-Watch and so also, M.O.4-Shirt and M.O.5- Pant.

57. In the cross-examination, he admits that police have shown M.O.7-Watch and while making the statement before the police, he did not make any reference with regard to the fact that watch is of which company and its make. He admits that, M.Os.4 and 5 were shown to him by the owner. He further admits that whatever evidence he deposed before the Court has not been stated before the police. It is stated that the deceased is not his son and the same was denied.

58. P.W.19 in his evidence has deposed that he has not seen the accused persons, who are before the Court and he 46 does not remember whether they visited his shop. He also does not remember whether the accused persons came and got re-fixed the stereo, saying that the earlier stereo was not in order. But, he admits that police came and recorded the statement. He also does not know one Markers Bhat and so also his driver Maiyadhi.

59. He was subjected to cross-examination and suggestion was made that he made the statement before the police in terms of Ex.P45 that the accused persons came and got affixed the stereo and he can identify such persons and the said suggestion was denied.

60. P.W.20, is the Police Sub Inspector of Belthangadi Police Station, in his evidence, he states that on 12.11.2008 at about 12-30, he had received the information through wireless message from control room that some of the miscreants were proceeding in a black colour Innova Car bearing registration No.KA-21-N-6078, from Karkala towards Belthangadi, immediately he went at around 12-40, near Guruvayana Kere, when he tried to stop the vehicle, the driver of the Car did not stop the vehicle and tried to proceed 47 in a high speed and they started the quarrel near Neerusalu of Ujire Village and escaped from that place. In this regard, he registered a case in Crime No.288/2008 and prepared an FIR and thereafter transferred the said case for further investigation to Mulki Police Station. He identifies the copy of FIR Ex.P46 and also he states that he has drawn the seizure mahazar in terms of Ex.P47. It is also his evidence that three persons ran away from the Car and he identifies accused Nos.1 and 4 before the Court. He was subjected to cross-examination. In the cross-examination, he admits that, he identifies accused Nos.1 and 4 before the Court but he has not given the physical description of the said persons. He admits that the wireless information has been noted in the Station Diary of Belthangadi Police Station, but the same has not been produced before the Court. He also admits that in the said wireless information, the physical description has not been mentioned. The seizure mahazar is attested by two witnesses, namely, Ibrahim and Muttappa. He states that, for the first time, he had seen the person, who ran away from the place at 12-40, at that time, the witnesses, who were shown in Ex.P47 were not there at the spot. It is 48 elicited that he did not write the mahazar, but the same has been written through his staff. It is elicited that, Mahazar - Ex.P47 was not drawn at the spot and the same was denied. It is elicited that he did not see accused Nos.1 and 4 in the Innova Car, which had been stopped and the said suggestion was denied. It is suggested that he has not received any wireless message and the same was denied. It is elicited that he cannot tell from whom he has received the said wireless message. It is suggested that he had been planted as witness and the same was denied.

61. P.W.21, is the Police Inspector, in his evidence, he states that, he had received the credible information about the movement of accused No.1 that he has been in Koppa of Chikkamagaluru village and hence, immediately he rushed to the said place along with his staff in a vehicle belonging to the Department bearing registration No.KA-19- G-301 and he had apprehended accused No.1 at the bus stand of Koppa and he revealed about the involvement of committing the crime. Immediately, he was brought to Mulki Police Station and produced before the Circle Inspector of 49 Police, Sri Parameshwara Hegde. He also gave the report in terms of Ex.P48 and he identifies his signature as Ex.P48(a). It is also his evidence that, he had received the credible information about the movement of accused Nos.2 and 3 that they were proceeding towards Charmadi of Belthangadi Taluk and he proceeded to the said place securing the Circle Inspector of Belthangadi and apprehended accused Nos.2 and 3, who were waiting to board the bus. He had produced accused Nos.2 and 3 before the Mulki Circle Inspector at 12o clock and he gave the report in terms of Ex.P49 and he identifies his signature as Ex.P49(a). It is also his evidence that on 18.11.2008, he had received the information that accused No.4 had been near the house of Gujari Khader and he took his staff and went near the house of Gujari Khader, which was situated behind the Bharathi Rice Mill and he was arrested and produced before the Circle Inspector of Police, Mulki, on the same day at 6 p.m. and he gave the report in terms of Ex.P50 and he identifies his signature as Ex.P50(a). He also identifies accused Nos.1, 3 and 4 before the Court. He can identify the absconded accused No.2, if he seen him in future. 50 62. P.W.21 was subjected to cross-examination. In the cross-examination, he was mainly cross-examined with regard to encountering the accused persons in the crime and a case was registered against him and the same was denied. It is suggested that he is the servant of Bajarang Dal and the same was denied. He has not received any instructions in writing to arrest the accused persons. He volunteers that, there are oral instructions to apprehend the accused persons, who are involved in sensitive cases. He admits that while apprehending the accused, a memo has to be prepared at the spot. He states that, he had prepared the memo and given the same to the Circle Inspector of Police while submitting the report, but the same is not produced before the Court. He admits that the report was typed in the office of Circle Inspector of Police in the computer. It is suggested that the accused persons were apprehended in their respective houses and they were subjected to manhandling and thereafter produced before the Court and the said suggestion was denied. 51 63. P.W.22, is the Police Inspector, who was working in Mangaluru Police Control Room. He states that, on 11.11.2008, he had received the credible information that, a Ford Fiesta white colour car was moving around in the City and if any information is received, the same has to be informed to all the Station House Officers. It is his evidence that, he has received a credible information regarding an black colour Innova Car, which was used to assault one Shivakumar near Shivabhag and hence, gave the information to all the Station House Officers with regard to the movement of the said Car and also about the black colour Innova Car.

64. P.W.22 further states that on 12.11.2008, he had received the information at 8-50 a.m, that Innova Car bearing registration No.KA-21-N-6078 hit and run at Padubidre, proceeding towards Mangaluru. Hence, he gave information to all the Station House Officers through wireless message. At around 12-35 p.m, he has received the information that black colour Innova Car, which was robbed and found moving around the surroundings of Belthangadi 52 and hence, he gave the information to all at around 1-10 p.m, Circle Inspector of Police, Belthangadi called and informed that they have seized the said Innova Car and the accused persons ran away from the spot and the same was informed to the higher officers. It is also his evidence that, as per the instructions of the superiors, Circle Inspector of Police, Belthangadi and Assistant Superintendent of Police, Puttur, were instructed to trace the accused persons. In this regard, he has produced the Control Room Log Book as per Ex.P51. This witness was subjected to cross-examination and it was elicited that the Investigating officer has not signed Ex.P51. It is suggested that Ex.P51 is created for the purpose of this case and the same was denied.

65. P.W.23, is the Mahazar witness. In his evidence, he states that on 16.11.2008, he was called to the Police Station and accordingly, when he went there, the police also called one Ramesh Karkera, he found accused No.1 in the Police Station. He revealed that he would point out the place, where the vehicle was stopped and also would show the 53 place, where they have thrown the vehicle documents, number plates and also the place, where they committed the murder and also he would point out where the stolen articles are kept. Accused No.1 took him and other panch witnesses so also the police towards National Highway No.17 and instructed to stop the vehicle near Pavanje junction and he showed the place, where they stopped the Innova Car. The police have drawn the mahazar in terms of Ex.P52. He identifies his signature as Ex.P52(a). It is also his evidence that, accused No.1 called all of them to his house, which is located at Hale Angadi and produced three mobile handsets, one gold chain and the same were seized and also the mahazar was drawn. Accused No.1 took them near the place, where they have committed the murder and pointed out the place, where they have thrown the number plates and there were two number plates, wherein, the vehicle number is KA- 20-N-5557, and he identifies the same as MOs.1 and 2. He also identifies his signature in the seizure mahazar as Ex.P53 and his signature as Ex.P53(a). It is also his evidence that, accused No.1 took all of them, where they have thrown the vehicle documents and after conducting the search, they did 54 not find any such documents in the said place. The mahazar was drawn as per Ex.P55 and he identifies his signature as Ex.P55(a). It is also his evidence that, the accused No.1 led them to Belthangadi Mudabidri road and took them near Naaravi of Gurupura place and in the hillock, he had produced a Talwar and the accused told that the same was used only to cause threat. The mahazar was drawn in terms of Ex.P54 and he identifies his signature as Ex.P54(a). It is his evidence that, immediately after the recovery, they had been to the Police Station along with accused No.1. Thereafter, accused Nos.2 and 3 led all of them near Naaravi of Gurupura and produced two talwars and mahazar was drawn in terms of Ex.P56. He identifies the signature as Ex.P56(a). The witness also identifies the talwar seized at the instance of accused No.1 in terms of Ex.P54 and identifies the same as MO-14. He also identifies the two talwars, which are seized at the instance of accused Nos.2 and 3 and the same were marked as MOs.15 and 16. It is also his evidence that, accused Nos.2 and 3 have also led them to the residence and accused No.3 had produced four mobile handsets. But he states that, he does not remember with 55 regard to the remaining seizures in the house of accused No.2, but he claims that he can identify the same, if the same is shown to him. He identifies the clothes of the deceased and school records, which were kept in the bag. But he states that he does not remember whether the same were seized in the house of accused No.2 or in the house of accused No.3. He also states that the recoveries are made at the instance of accused No.2, mahazar was drawn and he can identify the same. He identifies the signature available in Ex.P57(a), which has been drawn in the house of accused No.2. He identifies black colour pant as MO-17, so also, the shirt as MO-18. He also identifies the towel as MO-19. He also identifies blue colour plastic cover as MO-20. He identifies the marks cards, which were found in MO-20 and the same were marked as Exs.P58, P59, P60, P61, P62, P63, P64, P65, P66 and P67. He also identifies the other three certificates as Exs.P68, P69 and P70. He also identifies the diary of the deceased as Ex.P71. The school bag is also marked as MO.21. He identifies three mobile handsets as MOs.22, 23 and 24. 56 66. Accused No.3 took them to his residence and produced three mobile handsets and mahazar was drawn in terms of Ex.P72 and he identifies his signature as Ex.P72(a). The said mobile handsets are marked as MOs.25, 26, 27 and 28. It is also his evidence that on 19.11.2008, he was called to the Police Station and he found accused No.4, in the Station. The other witness, Ramesh Karkera was also present. Accused No.4 led them and the police to his father- in-laws house and produced C.D.Player and mobile handset. The police have drawn the mahazar in terms of Ex.P73 and he identifies his signature as Ex.P73(a), the same is marked as MO.29. Further, he states that, he can identify the accused persons, whom, he had seen on 16.11.2008 and 19.11.2008. He identifies accused Nos.1 to 3 stating that, he had seen them on 16.11.2008 and accused No.4 on 19.11.2008. He identifies accused Nos.1, 3 and 4 before the Court.

67. In the cross-examination of P.W.23, it is elicited that he is the resident of Panja village, the same is at the distance of 12-14 kms from the Police Station. He is having 57 acquaintance with Sri P.A.Hegde, Station House Officer. He only called and asked him to become a witness and to sign the mahazars and the same was told to him over phone at about 6-00 a.m. Immediately, informing the same in the residence, he went to the Police Station. At around 6-30 a.m, Ramesh Karkera was not in Station and arrived at about 10- 15 minutes later. The police have told that, the vehicle was stolen and they have apprehended accused No.1. The police also told about the murder of a person and body was found on 12.11.2008. The police also told that Innova Car was stolen and the same was seized. He admits that he was not having any prior acquaintance with accused Nos.1, 3 and 4 and also he was not aware of their details. He also does not know about when they were arrested. He admits that he cannot tell the name of the scribe of the mahazars in Exs.P52 to 57 and also Exs.P72 and P73. He admits his signature in Ex.P52 at page-3. He admits that he has not written his address and the scribe has written the same. He admits that, he did not mention his address in Exs.P53 to P57. He also admits that, the time has not been mentioned along with the signature. It is suggested that he is a stock witness and 58 he used to sign whenever police gives instructions and the same was denied. He cannot tell the timings consumed for preparing the documents from Exs.P52 to P57. Probably, it might have taken nearly 14 hours for drawing mahazar and signing of Exs.P52 to P57. He was also not having acquaintance with the other witness, Ramesh Karkera. It is suggested that, he had signed Exs.P52 to P57, 72 and 73 at the instance of the police and the same was denied.

68. P.W.24, in his evidence, he states that he was working as Sub Inspector of Police at Mulki Police Station. He took further investigation in Crime No.100/2008. He went to the spot on 11.11.2008 and conducted the mahazar in the presence of Jeevandhar and at that time, one Sri. Prashanth Bhaskar Rao was also present. The mahazar was drawn in between 10 a.m. and 11 a.m. in terms of Ex.P2 and he identifies his signature as Ex.P2(c) and also he states that, he has drawn a rough sketch in terms of Ex.P75 and he identifies his signature as Ex.P75(a). It is also his evidence that on the same day, he has recorded the statement of P.W.3-P.Shantharama Shetty and so also the witness, 59 Sachhu @ Sathish Anchan. On 12.11.2008, P.W.1 appeared before him and told that the body of the deceased Praveen was found near the quarry of Kalavaru. Hence, he went to the spot and recorded the statement between 9-30 a.m. and 10-30 a.m. and included Sections 363, 379, 302 and 201 of IPC and requested the Court to conclude the same. He identifies the said letter requesting the Court as per Ex.P76 and he identifies his signature as Ex.P76(a). It is also his evidence that, he went to the spot and drawn the Inquest Mahazar from 11-30 a.m. to 2-20 p.m. and seized the clothes of the deceased and also the watch, so also two stones, which were tied around the body and also the nylon rope measuring 30 feet and another coir rope measuring 4 feet. During the said mahazar, he has recorded the statement of P.W.18 and P.W.2. Thereafter, the body was sent to post-mortem examination through PC-863 to Wenlock Hospital. Further investigation was handed over to the Circle Inspector of Police, Sri Parameshwara Hegde. He identifies his signature on Ex.P4 - Inquest Report as Ex.P4(b). P.W.2 made statement in terms of Ex.P3 before him. He also identifies MOs.4 to 11, which were seized at the time of 60 drawing the inquest. The transitional report is already marked as Ex.P76, which was sent through Sri P.Mohan - CW-48.

69. P.W.24 was subjected to cross-examination. In his cross-examination, he admits that, he seized the watch, in which the time is shown as 3-42, but no date. He admits that the body, which was removed from the water in the quarry was bloating and eye were protruding. He admits that, the body was not in a position to identify. It is suggested that P.W.2 has not given the statement in terms of Ex.P3 before him and the same was denied.

70. P.W.25, in his evidence, he states that on 09.11.2008, when he was proceeding in the motorcycle from Mulki to Kolakaadi, the railway crossing gate was closed and he was standing near the same, by that time, Zen Car and black colour Innova Car came to the said spot. By seeing the railway crossing gate being closed, both the occupants of the Zen Car and Innova Car took the vehicle, the way in which they came. He found one person in the Zen Car and also a driver in the Innova Car and there were three persons in the 61 rear seat. He is not having any acquaintance with them earlier but he had seen the Innova Car bearing registration No.KA-19-5557, the same belongs to P.W.3. That, on 11.11.2008, he found the said Innova Car in Mulki Police Station. He saw the persons in Maruti Zen and Innova Car at around 9-30 p.m, with the assistance of his motorcycle light and also street light, which were there near the railway crossing, he could identify the said persons. The witness identified accused No.4 before the Court saying that he was in Maruti Zen Car. Accused Nos.1 and 3 were there in the Innova Car. He also states that, he was called to District Jail to identify the accused persons and also he had signed the Test Identification Parade Questionnaires. He identified the Questionnaires at Exs.P32, P35, P38 and P41 and his signatures as Ex.P32(b), Ex.P35(b), Ex.P38(b) and Ex.P41(b).

71. P.W.25 was subjected to cross-examination. In the cross-examination, he admits that, he might have been to District Jail in the month of November i.e., on 11th or 12th, but he does not remember the same. He gave the Mulki 62 address to Taluka Executive Magistrate. When he went to District Jail, he admits while disclosing before the Taluka Executive Magistrate, he did not mention that he had seen the accused persons with the help of motorcycle light and street light. He does not remember the exact date of witnessing the accused near the railway crossing. It is suggested that he did not see the persons, who are inside the Zen Car and Innova Car while returning in the said Car and the said suggestion was denied. He admits that, while proceeding towards railway crossing, he did not see the occupants of both the Cars; but while returning from railway crossing, he had seen them. He states that, when he went to Police Station, he had seen them and he also saw the Innova Car in Police Station on 11.11.2008. He further reiterates that he had identified two accused persons before the Taluka Executive Magistrate. In the further cross- examination, he admits that there were two cases in the Mulki Police Station against him. It is suggested that he was a regular person at the Mulki Police Station and the same was denied. But he does not remember as to whether they have told him to give the information about the fact in 63 writing or not. He admits that, he did not make any statement as to whether the Innova Car driver and others might have stolen the Car in terms of Ex.D5. The police have recorded the statement before them, but he cannot tell, who is the scribe of the said statement.

72. P.W.26, who worked as Assistant Sub-Inspector of Police at Mulki Police Station, in his evidence he states that, on 11.11.2008 he had recorded the statement of P.W.8 and C.W.16, when they visited forest check post. He also states that P.W.19, Fayaz made the statement before him in terms of Ex.P45. In the cross-examination, it is suggested that he did not enquire about P.W.19 and C.W.16 and the same was denied.

73. P.W.27, is the Investigating Officer, in his evidence, he states that, he was working as Circle Inspector at Mulki Police Station. He took further investigation of this case from PSI, Sri Sudarshan-P.W.24 on 14.11.2008 and verified the status. On 16.11.2008, P.W.21 had produced accused No.1 before him and so also accused Nos.2 and 3. He has recorded the voluntary statement of accused No.1. 64 P.W.27 deposed with regard to the voluntary statement of accused No.1 in terms of Ex.P77 and accused No.1 in the presence of panch witnesses and also the staff showed the place, where the driver of the Innova Car was obstructed and hence, a mahazar was drawn in terms of Ex.P52 and he identifies his signature as Ex.P52(b).

74. It is also his evidence that accused No.1 led all of them to his house and he has produced three mobile handsets with one gold chain and mahazar was drawn, the said articles were seized. Out of the seized articles one mobile handset and one gold chain are in connection with Padubidre Police Station case and other two items were belong to Padubidre Police. It is also his evidence that accused No.1 led the team and showed the place, where the deceased was murdered and produced number plates of vehicle i.e., Innova Car bearing registration No.KA-20-N- 5557 and also created the number plates. The mahazar was drawn in terms of Ex.P53 and he identifies his signature as Ex.P53(b). He identifies number plates as MOs.1 and 2. It is also his evidence that, accused No.1 took them to the place, 65 where he had thrown the documents, but they did not find such documents, with regard to the same, mahazar was drawn in terms of Ex.P55 and he identified his signature as Ex.P55(b).

75. It is also his evidence that the Inspector Sri. Venkatesh Prasanna, P.W.21, also produced accused Nos.2 and 3, enquired them, arrested and recorded their voluntary statements. Accused No.2 in his voluntary statement pointed out the place, where the vehicle was robbed, the deceased was murdered, took them to his house, produced the belongings of the deceased i.e., marks cards and certificates, mobile handsets, which were snatched from the lorry driver, so also the talwar in terms of his voluntary statement- Ex.P78. Accused No.2 took them and produced the talwar. Accused No.3 also in terms of his voluntary statement- Ex.P79 showed the place, where the talwars are thrown. He had been to the said places along with panch witnesses and his staff and accused No.1 showed talwar and the same was seized while drawing the mahazar, which is at Ex.P54 and he identifies his signature as Ex.P54(b). He identifies the said 66 talwar as MO.14. It is also his evidence that accused No.2 took them to his house and produced the belongings of the deceased i.e., Pant, Shirt, Towel, Marks Cards, Certificates and one Mobile handset and the same were seized while drawing the mahazar in terms of Ex.P57. He identifies his signature as Ex.P57(b). He identifies MOs.17, 18, 19, 20, 21 and so also Exs.P58 to 71 documents. He identifies one Sony Ericsson Mobile and Nokia handset as MOs.23 and 24. His further evidence is that, accused No.3 took them to his house and produced four mobile handsets and black colour handbag, the same were seized by drawing the mahazar as Ex.P72 and he identifies his signature as Ex.P72(b). He identifies the mobile handsets as Mos.25 to 28. It is also his evidence that on 17.11.2008, the statement of witness Sridhara Poojary-P.W.17 was recorded.

76. The Inspector, P.W.21 also produced accused No.4 on 18.11.2008 and his voluntary statement was recorded in terms of Ex.P80. He has also produced the mobile handset of a lorry driver stating that the same was kept in the house of his father-in-law and also the C.D.Player 67 of Pioneer Company. On 19.11.2008, accused No.4 took them to their father-in-laws house and produced the C.D.Player of Pioneer Company and the mobile handset. The mahazar was drawn in terms of Ex.P73 and he identifies his signature as Ex.P73(b). He also identifies the mobile handset as MO.29. On 20.11.2008, he recorded the statement of Vinod Kumar, P.W.16 as per Ex.P43. On 25.11.2008, he made a request to the Taluka Executive Magistrate to conduct the Test Identification Parade. He also called the brother of the owner of the Zen Car since he was in abroad and recorded the statements of the witnesses-P.W.9 in terms of Ex.P12 and P.W.10 in terms of Ex.P13. He also drawn the mahazar in terms of Ex.P5. He identifies his signature as Ex.P5(d). Exs.P6 to P8, are the photographs of the Car seized under Ex.P5. P.W.5 has given the statement in terms of Ex.P9, the same was sent to Forensic Science Laboratory.

77. P.W.27 in his evidence states that on 28.11.2008, the witnesses P.W.15 - T.V.Shivakumar and P.W.11 - C.Ashwath Narayana Rao have given statements before him and P.W.11 gave his statement in terms of 68 Ex.P.14. He also recorded the statement of P.W.3, Shantharama Shetty, the owner of Innova car. He has also recorded the statement of other witnesses. It is evident that on 16.12.2008, he has received the log entry book/record from the control room, which is marked as Ex.P.51. It is further evident that he has incorporated the statements recorded by Assistant Sub Inspector of Mulki Station with reference to other witnesses i.e., Fayaz, H.Gopal and Anna Nayak. He has also recorded the statements of other witnesses on 20.12.2008. After completing the investigation, he filed the charge sheet. On 16.11.2008, accused Nos.2 and 3, in terms of their voluntary statements took him and panchas so also his staff and produced the talwars which were used in the crime. The mahazar was drawn in terms of Ex.P56. He identifies his signature as Ex.P56(b). The said talwars are marked as M.Os.15 and 16. It is also his evidence that accused Nos.1, 3 and 4 who were present before the Court are the accused persons who were produced before him by P.W.21. He also states that he could identify accused No.2. 69 78. P.W.27 was subjected to cross-examination. In his cross-examination, it is elicited that P.W.21 has not submitted the report as to where the accused persons were apprehended, but he has given the statement with reference to the same. He admits that the voluntary statements of accused Nos.1 to 4 are computerized statements. It is suggested that accused Nos.1, 3 and 4 have not produced any talwars and he is deposing falsely before the Court and the said suggestion was denied. He admits that Ex.P54 mahazar is not in his hand writing. It is suggested that M.Os.17 to 20 do not belong to accused No.2 and he has not produced the same and the said suggestion was denied. The witness volunteers that M.Os.17 to 20 belong to the deceased and the same were found in the house of accused No.2. He admits that the statements of witnesses are not in his hand writing. It is suggested that he is falsely deposing that accused No.4 has produced the CD and the said suggestion was denied. It is suggested that on 16.11.2008, accused Nos.2 and 3 did not take them and panchas to any place and also not produced any articles and the said suggestion was denied. It is suggested that accused Nos.1, 3 70 and 4 are implicated at the instance of P.W.21 and the same was denied.

79. P.W.28 is the circle inspector and in his evidence, he states that in terms of the order passed by the Udupi Court, he has released the Innova car.

80. To consider the materials available on record both oral and documentary evidence, being a First Appellate Court, this Court has to re-appreciate the same by scrutinizing and analyzing the evidence available on record in its entirety so as to ascertain whether the Trial Court has properly appreciated the evidence available on record in its right perspective.

81. Now the question before this Court is with regard to whether the death of Praveen is on account of homicidal or not and the same is to be considered at the first instance before assessing the evidence of other witnesses available on record. The prosecution mainly relies upon the evidence of doctor so as to ascertain whether the cause of death of said Praveen is homicidal or not. The doctor who has been 71 examined as P.W.13 is the one who conducted postmortem examination of the deceased on 12.11.2008 between 3:30 p.m. to 4:45 p.m. and issued the postmortem report in terms of Ex.P.17. He also collected the FSL repot and has given his opinion in terms of Ex.P18. The postmortem report reveals the nature of body which was subjected to postmortem. It is stated by the doctor in his evidence that, he has given the primary opinion based on an autopsy findings and circumstantial evidence furnished by the Investigating Authority. It is his opinion that the deceased died due to homicidal drowning and the time since death is 48 to 72 hours prior to conduction of postmortem examination. It is further stated that he has given his final opinion as to the cause of death after receiving report from the RFSL. He reiterated the cause of death as the deceased died due to homicidal drowning.

82. Taking note of the oral evidence of P.W.13 and also the documentary evidence in terms of Exs.P17 and P18, it is clear that the death of Praveen is on account of drowning and the same is a homicidal death. The said fact is not 72 disputed by the defence during the course of cross- examination of P.W.13 except eliciting from his mouth that, he has received information from the police that unknown miscreants have strangled the deceased with ligature and dispossessed in a pond. He further admits that no ligatures were shown to him by the police officers. Having considered the evidence of P.W.13 coupled with documentary evidence, it is clear that the death of the deceased is due to drowning. Hence, it is a clear case of homicidal death. Therefore, we do not find any error committed by the Trial Court in coming to a right conclusion that the death of Praveen is due to drowning.

83. Now this Court has to re-appreciate the oral and documentary evidence available on record in order to ascertain as to whether the prosecution has proved the accused persons have robbed the Innova car bearing registration No.KA-20-N-5557 and thereafter, committed the murder of said Praveen since it is the very contention of the State that the Trial Court has failed to appreciate the same in its right perspective. 73 84. It is the main contention of the learned High Court Government Pleader appearing for the State that the Trial Court has failed to appreciate the materials available on record prejudging that the prosecution did not prove its case. He would further contend that though the prosecution has proved its case beyond all reasonable doubt and also proved the mahazars - Exs.P52, 53, 54, 55, 56 and 57 so also examined P.Ws.23 and 27, the Trial Court has erroneously come to the conclusion that the prosecution has not proved the case. It is further contended that the prosecution has proved the case of Innova Car being robbed and changing of its number plate by affixing the manipulated number plate. Both the original and the manipulated number plates were seized at the instance of accused No.1. It is also the case of the prosecution that talwars are used only to cause threat but it is not its case talwars are used to assault the victim. However, the finding of the Trial Court that the same is not stained with blood is erroneous. The Trial Court has failed to appreciate the materials available on record with regard to recovery of the bag of the deceased so also the original certificates, which were seized at the instance of accused 74 No.2. The C.D. player is also seized at the instance of accused No.4. The Taluk Executive Magistrate also conducted the Test Identification Parade, which was supported by the witnesses, who identified the accused persons in the Test Identification Parade. Despite, the same has not been properly appreciated by the Trial Court in its right perspective.

85. On the other hand, it is the contention of learned counsel for respondents that the accused persons have not been identified by any of the witnesses and the Test Identification Parade is also not proved. The prosecution has also not proved the recovery. Since the case mainly rests upon the circumstantial evidence, where to convict the accused persons, there must be a link to each circumstances of the case, which has not been found in the present case. Hence, the acquittal is based on the materials and it does not require any interference.

86. Keeping in view of the contentions urged by learned High Court Government Pleader, learned amicus curiae for respondent Nos.1 and 2 and learned counsel for 75 respondent No.3, this Court has to re-appreciate the materials available on record. Now let us consider the materials on record. It is to be noted that the law was set in motion by lodging complaint by P.W.1, who is the Manager of P.W.3 and at the first instance, he lodged complaint in terms of Ex.P1, making the allegation against the deceased that he had stolen the said black colour Innova car. In pursuance of the said complaint, spot mahazar was conducted in terms of Ex.P2 in the presence of P.Ws.1 and 4. No doubt, the materials available before the Court clearly reveal that the owner and the Manager of the Innova car suspected the driver that he might have stolen the Innova car.

87. It is emerged in the evidence that before lodging the complaint, P.W.1 searched for the driver in his native place so as to ascertain whether he had been there and it was confirmed that he did not visit his native place i.e., Theerthahalli village. The complaint was given on the next day i.e., on 10.11.2008. The Trial Court, while appreciating the materials available on record, at para No.14 at the first instance itself comes to the conclusion that admittedly, 76 nobody has seen the accused in the said car. Such an approach of the Trial Court in not appreciating the materials on record and coming to the conclusion that admittedly nobody has seen the accused in the said car is erroneous.

88. It is to be noted that the prosecution has examined P.W.25 - Sathish Kumar, who is a Civil Engineer working at Mulki found one Zen car and also the Innova car on 9.11.2008 at about 9:30 p.m. near the railway crossing gate while he was traveling from Mulki to Kolakaadi. Since the said railway crossing gate was closed, both the vehicles returned without crossing the said gate. At that time, he noticed a person in Maruthi Zen car and a person was driving the Innova car wherein other three persons were sitting in the rear seat. However, he states that he was not having any acquaintance with the said persons. He also noticed the Innova car bearing registration No.KA-20-N-5557 and the same belongs to P.W.3. It is his evidence that he had seen them with the help of his motorcycle light and also with the help of street light, which was erected near the railway crossing gate. He also identifies the accused No.4 as that of a 77 person who was in Zen car, accused Nos.1 and 3 in Innova car. It is also his evidence that he was called to identify the accused persons to District Jail and he identified them and also signed the questionnaires at Exs.P32, P35, P38 and P41. It is important to note that at one breath during the course of cross-examination, he states that he might have visited District Jail on 11.11.2008 or 12.11.2008 and at another breath, in his chief-evidence, he states that on 11.11.2008 itself he had seen the Innova car in front of Mulki police station. The Trial Court, while appreciating the evidence of P.W.25, has given much importance to the date specified by P.W.25 so also to the fact that he has not given any statement that he could able to see the accused persons with the help of motorcycle light and street light, before the Taluk Executive Manager while identifying the accused persons. It is to be noted that the accident was taken place in the year 2008 and he was examined on 27.04.2012, which is almost after 4 years of the incident. When such being the case, the Court cannot expect the actual date from the mouth of the witness. It has been categorically stated in his evidence at the first instance that he did not see those persons when 78 they came near the gate, but the defence counsel has elicited in the cross-examination that he had seen the accused persons while returning from the said gate. He also stated in his evidence that he could identify the other person who was in the vehicle, but the fact is that the other accused person is absconding and a split up case has been registered against him. He also reiterated the fact that he identified the accused persons before the Taluk Executive Magistrate while conducting the Test Identification Parade. In this background, it is important to note that the Test Identification Parade was conducted on 10.12.2008, within a span of one month from the date of witnessing the accused persons.

89. During the course of cross-examination of P.W.25, no doubt it is elicited that he did not make the statement in terms of Ex.D5 mainly with regard to these accused persons having robbed the Innova car. Except the said admission, nothing is elicited in the said cross- examination. The Trial Court, taking note of the discrepancies in mentioning the date of the Test Identification Parade and 79 also with regard to sighting the car on 11.11.2008, has come to the admission that his evidence is doubtful, which is erroneous. The Court cannot expect photographic evidence when the witness is examined after four years.

90. The prosecution has not only examined P.W.25 who identified the accused persons, but also examined P.W.15. It is to be noted that nothing is elicited in the cross- examination of P.W.25 with regard to having any ill will against the accused persons to depose against them and nowhere, it is suggested in the cross-examination of P.W.25 that he was having any ill will against the accused persons. The other witness P.W.15 is the owner of the Ford Fiesta Car, who was also subjected to assault by the accused persons and in his evidence, he states that on 11.11.2008, when he was proceeding towards Udupi at around 5:45 a.m. from Mangaluru, some persons were standing on the road in the black colour Innova car. One of the occupants came and enquired about the tools, in the meanwhile, the other persons who were in the car came near him and entered inside his car. When they tried to pull him out, he screamed 80 at the spot, but nobody came to his rescue since it was 6.45 a.m. It is also his evidence that he was dragged towards his back seat and his car was driven away by the accused persons. His ATM card and other belongings were snatched from him. Two persons who were sitting in front of the car went to draw the amount from the ATM card using the pin, which was collected from him. He states that he has given the wrong pin number to the accused persons. Somehow, he escaped from the spot and thereafter, took treatment in the hospital. He has stated in his evidence that the black colour Innova car bearing registration No.KA-21-N-6078 was parked in front of his car. Those incidents according to him have taken place at 6.45 a.m. He went and identified his belonging i.e., a gold chain, but he did not find his ATM card. It is stated in his chief evidence that he could identify those four persons who entered his car and the persons who dragged him and robbed his car. He identifies the three accused persons who were present before the Court and deposed that he could identify the other person, if he is seen. 81 91. During the course of his cross-examination, he admits that he was enquired in respect of his car being robbed and he further admits that the things which they have snatched from him are not before this Court. He also participated in the Test Identification Parade on 10.12.2008 and identified the accused persons. He further admits that he did not make any statement before the Mulki C.P.I. It is elicited that he did not inform the police about his car being in the house of his friend Uday Kumar. He does not remember whether he made any statement before the C.P.I. with regard to the fact that while he was proceeding in Ford Fiesta car towards Udupi, the inmates of Innova car came and stopped him. He admits that in this case, he did not make any statement with regard to snatching of his belongings in this case. He also admits that he has not given any statement in terms of Ex.D3 that when the accused persons went to draw the amount from ATM, he escaped.

92. It is to be noted that Trial Court, while appreciating the evidence of P.W.15 made an observation that even his conduct at, after he escaped, he could have 82 called the public there or he could have called the police, but he states that he went to the hospital and police took the complaint from him. The Trial Court has made an observation that he has also stated that there were some persons when his car was stopped and one tempo was there. But he has stated he has not screamed for help. These findings of the Trial Court are erroneous.

93. On perusal of evidence of P.W.15, it clearly reveals that he had screamed at the spot but he states nobody came to his rescue since the time was at around 6:45 a.m. The Trial Court has erroneously made observation that he has stated that he did not scream for help and the same appears to be unnatural and improbable conduct. When he has categorically deposed that he screamed at the spot, the very finding given by the Trial Court is erroneous. It appears that the Trial Court has proceeded in an erroneous approach and ignored the evidence of P.W.15, wherein he has categorically deposed that he screamed at the spot for help and since the time was around 6:45 a.m., nobody came to his rescue. 83 94. The Trial Court also made an observation that it is the case of the prosecution that accused were caught hold by public and beaten and somehow by giving false reason, the accused have escaped from there, which is against the material on record. It is the evidence of P.W.15 that he was assaulted and sustained injuries, for which he went to hospital and took treatment. The Trial Court has given much importance with reference to non-production of documents of the showroom for having kept the vehicle in show room and medical evidence pertaining to P.W.1 for having sustained injuries and taking the treatment before the Court. It is to be noted that a separate case has been registered against the accused persons for robbing his vehicle. When such being the case, the Trial Court ought not to have given the finding that the things which have been snatched from him were not before the Court. The Court cannot expect the same in this case since other cases have been registered against the accused persons.

95. In this background, when evidence of P.W.15 is clear that he went to hospital for treatment and the police 84 have recorded the statement in the hospital, which would be available in the other case which has been registered against the accused, the Trial Court has erroneously come to the conclusion that the prosecution cannot use him to connect the accused in this case and cannot use his evidence that the accused were found in possession of Innova Car. The very observation of the Trial Court that there is no evidence to show that this witness has come to Mangaluru, because he is the resident of Udupi, is erroneous. It is the specific case that before going to Tamil Nadu to attend the marriage, he left his car in Mangalore Cauvery Ford Showroom for service. His friend Uday Kumar had brought his car to his residence and when he started his journey towards Udupi, the accused persons stopped his vehicle, assaulted him and robbed his vehicle and belongings including gold chain which he identified. The very conclusion of the Trial Court that his identification of the Innova Car itself is doubtful is erroneous since the witness - P.W.15 has specifically stated the number of Innova car. The Trial Court has also come to the conclusion that the owner of the car has given complaint that driver Praveen himself has committed the theft of said 85 Innova car. The said complaint is given at the first instance when the driver was not found and giving the complaint against the driver at the first instance is immaterial.

96. The Trial Court has committed an error in holding that P.W.1 himself given the complaint but no doubt at the time of lodging complaint, which is marked as Ex.P1, P.Ws.1 and 3 were not aware as to whether the car was stolen by the deceased or it was robbed and the driver was murdered and much importance is given to the said complaint. The very approach of the Trial Court in appreciating the evidence of P.W.15 is erroneous. P.W.15 categorically identifies the accused before P.W.14 the Executive Magistrate and also before the Court. Hence, the very contention of the defence that there is no proper identification of the accused cannot be accepted.

97. P.W.20, is the police inspector who seized the Innova Car. In his evidence, he categorically states that on credible information received through wireless message that some miscreants were moving in Innova car, he went and tried to stop it, but it went in high speed and thereafter, he 86 found the said the vehicle was parked near Neerusal at Ujire Village of Belathangadi Taluk but the accused persons escaped leaving the car at the spot. In this regard, he registered a case in Cr.No.288/2008 and transferred the same to concerned police. However, he seized the vehicle in terms of mahazar - Ex.P46. It is also his evidence that three accused persons ran away from the car in his presence and he could identify them. He identified the accused Nos.1 and 4 before the Court in this case as the persons who ran away from the car.

98. In the cross-examination, he admits that while giving wireless message, they did not mention anything about the physical description of the accused persons. He categorically admits that he had witnessed them at 12.40 and at that time, the mahazar witnesses were not present at the spot. It is suggested that he did not witness accused Nos.1 and 4 and the same was denied. The Trial Court, while appreciating the evidence of P.W.20 held that his evidence cannot be accepted in coming to the conclusion that no documents were produced in support of his evidence that the 87 vehicle was parked and the inmates of the car ran away. Then how could he see the accused and identify them. So, it is very difficult to believe his evidence. The evidence of this witness is that he has identified accused Nos.1 and 4 before the Court only after three years of the said incident. He has only seized the empty vehicle parked near Neerusalu. If at all the accused ran away, then what step was taken by this witness to catch the said accused is not forthcoming. Why he has not taken such steps and why he did not inform through wireless message about the accused running and why any such effort to catch the accused has not taken is not at all forthcoming. Such a vague and general evidence of P.W.20 will not help the prosecution in any way. In this regard, it is very important to note that he categorically states in his evidence that he has received credible information through wireless message about the accused persons traveling in the Innova car.

99. It is pertinent to note that it is the specific evidence of P.W.20 that he tried to stop the vehicle but they did not stop it but proceeded further and parked the vehicle 88 near Neerusalu. Since he witnessed the accused escaping from the spot, he could able to identify the accused persons. The very observation of the Trial Court that he did not take any steps to catch hold of the accused is contrary to the materials available on record. P.W.20 categorically states that he immediately registered a case in Crime No.288/2008, seized the vehicle at the spot and sent PF to concerned Court. In the cross-examination of P.W.20, except eliciting that no physical description was given when the wireless message was received, nothing has been elicited to disbelieve the evidence of P.W.20. No doubt, he has been examined before the Court in the year 2012 and the incident was taken place in the year 2008. It is to be noted that the Trial Court has failed to appreciate the evidence of a police inspector, who is not an ordinary person. Hence, the very observation of the Trial Court that his evidence cannot be believed cannot be accepted. It is his specific case that he could able to see the accused persons while escaping from the spot and in order to demonstrate the same, the Court cannot expect the documents to be produced by P.W.20 as observed by the Trial Court in its judgment at para 19. He 89 had also seized the vehicle at the spot by drawing mahazar at Ex.P47.

100. It is also important to note that the other witness P.W.22, who was working as a Police Inspector in the police control room states that he received information that some persons in the black colour Innova car had assaulted one Shivakumar and moving towards Mangaluru and they were asked to watch the same. The said information was received through wireless message was sent immediately and P.W.20 acted on the said information and in turn, he gave information to the concerned police and also informed him about seizing of the said Innova car, at around 1:10 p.m. and they also informed that some of the culprits ran away from the vehicle. However, the Trial Court fails to consider the evidence of P.W.22, who categorically states that P.W.20 has given the information about seizing of the vehicle and also about culprits who ran away from the place which has been entered in the log book-Ex.P51.

101. While appreciating the evidence, the Trial Court made an observation that P.W.20 has not taken any steps to 90 catch hold of the accused, which is against the evidence adduced by P.W.22. He categorically states that the same has been entered in the log book which has been maintained in the control room and to substantiate the same, he has produced the log book as Ex.P51. On perusal of Ex.P51, there is an entry, but in the cross-examination, except eliciting that Investigating Officer has not signed Ex.P51, nothing has been elicited and the evidence of P.W.22 has not been controverted in the cross-examination, which has not been considered by the Trial Court.

102. The prosecution examined P.W.20 with regard to identification of the accused. The Trial Court has disbelieved the evidence of P.W.20, who had intervened while the accused persons taking away the Innova Car. As already pointed out, the witness is a police officer and not an ordinary man and he might have been examined after 4 years but he has specifically identified accused Nos.1 and 4. When such being the case, the Trial Court ought not to have disbelieved the evidence of P.W.20. 91 103. Regarding identification of the accused persons, the prosecution has mainly relied upon the evidence of P.W.8, who states that on 11.11.2008 at around 3:32 a.m., he found the vehicle i.e., black colour Innova Car bearing registration No.KA-21-N-6078 and given the pass and the same was entered in the register in the Sl.No.128 and found the accused persons in the said vehicle. On the same day at about 9:30 a.m., he was in the Forest check post and he was issuing the pass in respect of the vehicle which passes through the check post. The very same vehicle came back with the very same number and in that regard also they made an entry at Sl.No.120 and both the copies of the registers are marked as Ex.P10 and Ex.P11 respectively and the entries are marked as Ex.P10(a) and Ex.P11(a) respectively subject to objections raised by the learned counsel appearing for the accused.

104. The Trial Judge, while appreciating the evidence of P.W.8 had come to the conclusion that his evidence cannot be believed since he was examined on 21.01.2012, how he could identify the accused persons before the Court, whom 92 he has seen in the early morning hours on 11.11.2008 i.e., nearly after three years. It is also not possible to identify the persons passing in all the vehicles, as the number of vehicles passes through in the said check post daily. Hence, his identification is doubtful and the same suffers from natural human conduct and probabilities. In an ordinary course of human conduct, a person cannot identify, unless there is something special in the said person. The Trial Court also disbelieved Exs.P10 and P11 in coming to the conclusion that the documents i.e., Exs.P10 and 11 does not bear the date and further while marking those documents are objected. It is further held that when the document is produced, it must be proved by the prosecution and simply producing the xerox copy of some documents stating that they are true copies, will not help the prosecution in any way.

105. It has to be noted that the evidence of P.W.8 is that, he was on duty in the check post and these accused persons came at around 3.30 a.m, in the Innova Car bearing registration No.KA-21-N-6078. The Trial Court failed to take note of the fact that the time was odd hour i.e., 3.30 a.m. 93 and P.W.8 need not necessarily remember it, unless it was a special occasion. Further, it is pertinent to note that the very same vehicle came back at 9.30 a.m. again. His specific evidence is that he had witnessed these accused persons in the said Innova Car. It is also pertinent to note that, there was an entry in the register maintained by them. The said vehicle passed through the said gate and also came back in the very same gate and entries are marked as Exs.P10 and 11. The documents which are marked are not the xerox copies as held by the Trial Court. It has to be noted that those two documents are certified copies, which are produced before the Court. It has to be noted that the said documents are the registers maintained on day to day basis and certified copies are obtained by the Investigation Officer, who conducted the investigation and the same are also marked. When such being the case, the Trial Court ought not to have disbelieved the documents at Exs.P10 and P11. It clearly shows an entry that the Innova Car bearing registration No.KA-21-N-6078, passes through the said check post in the early morning hours at 3.32 a.m. and again at 9.30 a.m, it came back. When such being the case, the Trial 94 Court ought not to have disbelieved the evidence of P.W.8 regarding identification of the accused persons.

106. It is pointed out that the said vehicle passed through the said check post in the early morning hours at 3.30 a.m. that too in the odd hours and also came back on the very same day at 9.30 a.m. twice a day, when such being the case, the Trial Court has erroneously come to the conclusion that the evidence of P.W.8 cannot be believed. It is also pertinent to note that, P.W.8 is an official witness, who is working in the Forest Department as guard and nothing is elicited in the cross-examination of P.W.8 that there was an enmity against the accused to falsely implicate those accused persons. It is also important to note that in the cross-examination, he categorically states that the said document was given on the date of the request made by the police, but he did not disclose the description of the persons. But, again he states that he did not ask anything about the same and hence, he did not inform the same. But he admits that in Exs.P10 and P11, dates are not mentioned. Merely because the date is not found in Exs.P10 and 11, the Court 95 cannot discard the same in toto, but on perusal of the document Ex.P10 i.e., the continuous sheet, where this Court can see that entry has been made in Sl.No.128 in respect of the early morning at 3.32 a.m, and so also Ex.P11(a) at Sl.No.120 and the timing is mentioned as 9.30 a.m. It is also pertinent to note that it is a continuous sheet and below the said entry of Ex.P11(a), the date is mentioned as 12.11.2008. Hence, it is clear that the said entries are pertaining to 11.11.2008 and the same has not been noticed by the Trial Court and ignored the material available on record. P.W.8, has also categorically identified the accused persons that they were in the vehicle on 11.11.2008, particularly, in the black colour Innova Car, which is having the number plate as KA-21-N-6078.

107. The other evidence available before the Court is P.W.14, who conducted the Test Identification Parade to identify the accused persons. The prosecution in order to prove the identity of the accused persons relied upon the evidence of P.W.14-Tahasilddar. The Tahasildar, in his evidence states that, on 10.12.2008, he conducted a Test 96 Identification Parade on the request of the Investigation Officer. Sri Raju, Sri Harisha Nayaka, Sri Sridhara Poojary, Sri Sachchu @ Sathish Anchan and Sri Vinod Kumar, participated in the Test Identification Parade. The witness Raju, did not identify all the accused persons but identified one among them. The witness Harisha Nayaka, has identified accused No.1 and the witness, Raju did not identify accused No.2 and again witness Harisha Nayaka, has identified accused No.2. The witness, Raju also did not identify accused No.3 and Harisha Nayaka has identified accused No.3. The witnesses, Raju and Harisha Nayaka, both have identified accused No.4. These two witnesses have not been examined before the Court. The witness, P.W.14 also in his evidence states that, the said Test Identification Parade was conducted in between 11-30 a.m. and 12-30 p.m, and the documents at Exs.P19 and P20 are marked. It is pertinent to note that P.W.14 got the signatures of these two witnesses to the questionnaires, which are marked as per Exs.P21 to 28. Further, P.W.14 also in his evidence states that, the witness, Sridhar Poojary did not identify accused No.1 and other witness Sachchu @ Sathish Anchan, has identified accused 97 No.1. The other witness, Vinod Kumar also identified accused No.1. The witnesses, Sridhar Poojary and Sachchu @ Sathish Anchan, have identified accused No.2. The other witness, Vinod Kumar also identified accused No.2. The witness, Sridhar Poojary did not identify accused No.3, so also, the other witness, Sachchu @ Sathish Anchan did not identify accused No.3. The witness, Vinod Kumar has identified accused No.3. The other witnesses also identified accused No.4 Moyiddin in the Test Identification Parade and got marked the documents of questionnaire as per Exs.P30 to P42.

108. In the cross-examination of P.W.14, except eliciting that he did not mention the colour and height of the accused persons and so also the other inmates of the jail while identifying the accused persons. He admits that he did not record the Test Identification Parade in his handwriting. But he categorically states that the questionnaires are in his handwriting only. It is important to note that those questionnaires are also marked before the Trial Court. The Trial Court while appreciating the evidence in paragraph 98 No.30 has come to the conclusion that the evidence of P.W.14 will not help the prosecution regarding Test Identification Parade, because the Test Identification Parade was conducted nearly after lapse of one month after the incident and the accused were arrested on 16th and 18th November itself. The delay in holding Test Identification Parade was not explained properly. It has to be noted that the very approach of the Trial Court is erroneous. It has to be noted that the accused persons immediately after the arrest, they were in police custody and recoveries are made at the instance of the accused persons and in order to conduct the Test Identification Parade, it has to be noted that the procedure has to be followed and a request has to be made to the concerned Taluka Executive Magistrate and thereafter Test Identification Parade has to be conducted since the Taluka Executive Magistrate has to make an arrangement to conduct the Test Identification Parade. It has to be noted that the Test Identification Parade is conducted on 10.12.2008 itself within the span of 22 days after the arrest of the accused persons. The Trial Judge did not consider the validity of the Test Identification Parade. It 99 is further observed that the age, physical feature of the person, who were standing along with the accused are important and it is very easy to identify the person, if he has special feature. But the Trial Court comes to the conclusion that the Test Identification Parade was not a substantial piece of evidence. No doubt, there was no dispute with regard to the fact that the Test Identification Parade is not a substantive piece of evidence, but the same is done only for the satisfaction of the prosecution that the investigation was moving in a right direction.

109. It is appropriate to rely upon the Judgments of the Apex Court in the case of Ayyub etc., v. State of U.P., reported in AIR2002SC1192and also in the case of Mahabir v. State of Delhi reported in AIR2008SC2343 The Apex Court held that the Test Identification Parade is not a substantive piece of evidence, but it is only for the satisfaction of the prosecution that the investigation was moving in the right direction, the same has to be conducted.

110. In the case on hand, the Test Identification Parade was conducted in the District Jail of Mangaluru by the 100 Taluka Executive Magistrate, who has been examined as P.W.14. Nothing is elicited in the cross-examination of P.W.14 to disbelieve the same. No doubt, the witnesses, who have been examined before this Court as P.Ws.16 and 17 did not support the case of the prosecution, but the fact that P.W.16 categorically in his evidence states that, the police have enquired and recorded the statement. Further, he states that the Taluka Executive Magistrate called him and obtained the signature at Ex.P39(b), but he does not remember Taluka Executive Magistrate calling him to District Jail. He also admits his signatures available on Ex.P34(b) questionnaire, and also the signature available on Exs.P37(b) and Ex.P40(b).

111. On perusal of these documents, Exs.P31, 34, 37, 40 are the questionnaires and signatures of these witnesses, which are available on record and there is no any explanation under what circumstances he had signed the said documents. He only states that he does not know where he has signed in those documents. But in the cross-examination, a suggestion was made that, he made the signature on the exhibits, he 101 himself wrote his name, but he states that he does not remember the same. It is elicited that he would not sign any of the documents without knowing the contents of the documents. But, he volunteers that only on faith, he signed. Hence, it is clear that, he has signed the documents on faith. Even though he turned hostile, the evidence of P.W.16 can be relied upon for the limited purpose of having gone to the District Jail, which he admits and he was called to the Test Identification Parade and he had signed the above exhibits while conducting Test Identification Parade and now lying before the Court.

112. Having considered the evidence of P.W.16, it is clear that he is lying before the Court that he does not remember about the participation in the Test Identification Parade. This witness, P.W.16 prepared the name plates of Innova Car at the instance of accused persons. The other witness is P.W.17, who affixed the cooling sheet on the glass of Innova Car. In his evidence also, he states that he does not remember the four persons coming and requesting him to put the cooling sheet on the Innova Car. He did not deny 102 the same but only he states that he does not remember. But he admits that the police have recorded the statement after making the enquiry. He also admits that he went to the District Jail to identify the accused persons at the instance of the Taluka Executive Magistrate. Hence, it is clear that P.W.17 though turned hostile, his evidence is clear that except stating that he does not remember the same, his evidence is clear that he went to District Jail and participated in the Test Identification Parade. The Trial Judge did not consider the evidence of P.Ws.14, 16 and 17 in a right perspective with regard to conducting of the Test Identification Parade and fails to consider the fact that other two witnesses have supported the case of the prosecution, who participated in the Test Identification Parade.

113. It is pointed out that the Test Identification Parade evidence is not a substantial piece of evidence. It is clear that after the arrest of the accused persons, they were subjected to Test Identification Parade. The very approach of the Trial Court was that, Test Identification Parade has not been conducted immediately, cannot be accepted and the 103 same has been conducted within 22 days of the arrest of the accused persons by observing the formalities and making request to arrange the same in the District Jail and immediately on their arrest, recoveries are made at the instance of the accused persons.

114. Having considered the evidence of P.W.25, P.Ws.8, 15, 14, 16, 17, 19 and 20, these witnesses have identified the accused persons and nothing is elicited in the cross-examination of these witnesses that they were having any enmity against the accused persons to depose falsely against them and there is nothing on record for false implication of these accused persons in this case. No doubt, the learned counsel appearing for the defence, vehemently contended that there is no material before the Court that the accused persons have been identified and the said contention cannot be accepted. The Trial Court has committed an error in not properly appreciating both oral and documentary evidence with regard to the identification of the accused persons. Now, the second link insofar as crime is concerned is the recovery of incriminating articles, which were in the 104 custody of the accused persons. This Court has to examine whether the material available on record connects the accused to this crime based on the recovery.

115. Learned HCGP appearing for the State vehemently contended that immediately after the arrest of accused No.1, he had shown the place where the Innova Car was robbed and mahazar was drawn in terms of Ex.P52. The learned Counsel also would submit that the original number plate of the Innova Car was seized at the instance of accused No.1 so also he showed where Praveen was drowned in the water and in the said place also the mahazar was drawn in terms of Ex.P53. Accused No.1 also produced talwar, which was used to threaten him and mahazar was drawn while recovering the talwar in terms of Ex.P54.

116. The learned HCGP also would contend that in order to recover the vehicle documents, accused No.1 took them to spot, but no such documents were found in the said place even though the mahazar was drawn in terms of Ex.P55. He would also contend that at the instance of accused Nos.2 and 3, talwars are recovered in terms of 105 Ex.P56. He also would contend that in the house of accused No.2, the bag belonging to the deceased was recovered and in the said bag original certificates of the deceased i.e., SSLC marks card; PUC marks card and other certificates are recovered. Mahazar was drawn in terms of Ex.P57. It is contended that, the Trial Court has given the finding that the recovery has not been proved and the place of recovery is also not stated. Inspite of evidence of P.Ws.23 and 27, it is clear that the recoveries are made at the instance of accused No.2 in his house. In this regard, the Trial Court has committed an error.

117. Further, the learned HCGP relied upon Exs.P72 and P73 under which mobile handsets were recovered at the instance of the accused, which belongs to the driver of the lorry, which was also subjected to robbery by the accused and in terms of Ex.P73, C.D.player of the Innova Car was seized at the instance of accused No.4 and so also the mobile handset from accused No.4.

118. It is the contention of the defence that the prosecution failed to prove the mahazars and also did not 106 prove the recovery. In keeping these contentions, this Court has to re-appreciate the evidence available on record. It has to be noted that though there are two witnesses to these mahazars, only one witness P.W.23 has been examined. The other witness is Investigating Officer, who has been examined as P.W.27. Insofar as recovery is concerned, this Court has to rely upon the evidence of P.Ws.23 and 27 and so also the evidence of P.W.20, who seized the Innova Car. It is pertinent to note that P.W.21 is the Investigating Officer, who apprehended all these accused persons and immediately after apprehending these accused persons based on their voluntary statement, recoveries are made in the presence of panch witnesses.

119. Firstly, we would like to appreciate the evidence of P.W.21, who apprehended the accused. If the prosecution is able to prove the arrest of the accused persons, then, the recovery has to be considered.

120. P.W.21 is the Police Inspector, CCB, Mangaluru, who arrested all the four accused persons. In his evidence, he categorically states that when he was in the office on 107 15.11.2008 in connection with Crime No.3/2008, he had received credible information that accused No.1 is in Koppa of Chickamagaluru Village. Hence, he immediately went to Koppa along with the staff and apprehended accused No.1 and produced him before the Investigating Officer and submitted report in terms of Ex.P48. Thereafter, on the same day, he has also received information about accused Nos.2 and 3 waiting near the bus stop and along with the Circle Inspector of Belthangady, apprehended accused Nos.2 and 3 and gave a report in terms of Ex.P49 while producing the accused before the Investigating Officer. It is also his evidence that on 18.11.2008, he apprehended accused No.4 at Koppa and he gave the report in terms of Ex.P50.

121. In the cross-examination, no doubt he admits that he did not receive any instructions in writing to apprehend the accused persons, it is suggested in the cross- examination that these accused persons were arrested in their respective houses and the same was denied.

122. It is to be noted that the trial Judge, while appreciating the evidence of P.W.21, at para 20 of the 108 judgment comes to the conclusion that there is no basis for arresting accused No.1 from the bus stand, nor the accused was found with any articles or the accused was moving in a suspicious manner. What is the basis for his arrest is not stated by him. Similarly, he has stated that, he came to know about accused Nos.2 and 3 on the same day and arrested them and so also, arrested accused No.4 on 18.11.2008. Hence, according to the prosecution, the basis for arrest of these persons is only on some credible information. Why this witness - P.W.21 suspected these accused persons and what is the basis for arresting these accused persons is not forthcoming. The very approach of the trial Judge is erroneous since, it is the specific evidence of P.W.21 that when he was in the office, he received a credible information in respect of Crime No.3/2008 of Mulki Police Station and when the evidence is clear that he had received credible information in respect of Crime No.3/2008, the trial Judge ought not to have come to a conclusion that there was no basis for the arrest of the accused persons. 109 123. It is also observed by the trial Judge that, it is not that the accused were absconding after the incident, the said finding is also erroneous. When the witness, P.W.21 categorically deposes that he had received credible information in respect of Crime No.3/2008, on the said basis, he went to the spot and apprehended the accused persons. No doubt, the accused persons have taken the defence that they were apprehended in their house and they were manhandled before producing them in the Court. They have been falsely implicated in the case. Nothing is available on record to substantiate that they were subjected to manhandling and arrested from their house. Mere taking of defence that they were apprehended in their respective houses, the Court cannot disbelieve the evidence of P.W.21, when it is his specific evidence that he had received credible information in connection with a particular crime. Hence, the Court below has committed an error in appreciating the evidence.

124. As already pointed out that, in the cross- examination of P.W.21, except eliciting the answer from the 110 mouth of P.W.21 that, he did not receive any instructions in writing to apprehend the accused, no worth while cross- examination is made with regard to arrest of the accused persons. Since this Court has to analyze the evidence available on record with regard to recovery, it is necessary to consider the evidence of P.Ws.23 and 27 complied with the evidence of P.W.21.

125. P.W.23, in his evidence categorically states that he was called to police station by the Investigating Officer and requested him to be a witness to the part of recovery. It is his evidence that accused No.1 led him and other panch witness and so also the Investigating Officer and his staff to the place of incident. He had pointed out the place where the Innova car was robed and hence, mahazar was drawn in terms of Ex.P52 and he identifies his signature. It is also his evidence that, accused No.1 led them to his house and produced three mobile handsets, gold chain and so also the accused led them to the next spot where the deceased was drown and near by the said place, in the bush, where they 111 had thrown the number plates and the same were seized by drawing mahazar in terms of Ex.P53.

126. P.W.23 also in his evidence states that Talwar was recovered in a bush at the instance of the accused and mahazar was drawn in terms of Ex.P54. It is his evidence that accused No.1 used Talwar only to cause threat. It is also his evidence that accused Nos.2 and 3 have also led the team and produced Talwars which are seized under mahazar, Ex.P56. The witness also identifies the Talwars and number plate. P.W.23, further states that accused No.2 took them to his house and produced four mobile handset and also produced the bag which contained the certificates of the deceased. He states that he does not remember as to what are the certificates which were seized in the house of accused No.2, but he identifies the signature on Ex.P57. It is pertinent to note that, Exs.P59 to 71 i.e., certificates belonging to the deceased are also marked through this witness. It is also his evidence that at the instance of accused No.3, mobile sets are seized and mahazar was drawn in terms of Ex.P72(a) and the same are marked as 112 M.Os.25 to 28. It is also his evidence that, at the instance of accused No.4, in the house of his father-in-law, C.D. Player and mobile phone are seized by drawing mahazar in terms of Ex.P73.

127. No doubt, in the cross-examination, it is elicited that he knew the Station House Officer P.A. Hegde, who had called him over phone. He went to station at around 6.30 a.m. The other witness arrived within 10 to 15 minutes of his arrival. He was not aware of the arrest of accused Nos.1, 3 and 4 when he went to police station. It is suggested that he is a stock witness and he used to make signature blindly whenever the police used to ask him to sign the documents, and the same was denied. He states that he cannot tell the specific timings of the said mahazars, but he categorically states that they took 14 hours to draw the mahazars.

128. P.W.27 - Investigating Officer in his chief evidence, reiterates the evidence of P.W.23, since P.W.23 was present while drawing recovery mahazar. 113 129. In the cross-examination of P.W.27, he states that P.W.21 has not given the report with regard to the arrest of the accused persons. But he states that he has given the statement. He also admits that the voluntary statements of accused Nos.1 to 4 have been typed in the computer. It is suggested that no recoveries are made and the same was denied. He admits that the mahazars are not in his handwriting. It is suggested that accused Nos.1 to 4 have not led them and produced any articles and the same was denied.

130. Now coming to the appreciation of oral and documentary evidence by the trial Court in respect of the evidence of P.W.23, it has come to the conclusion that his evidence cannot be believed on the ground that police have called him to the police station and accused persons have made the statement before him that they are going to point out the place where the crime was committed. It is pertinent to note in para 10 of his chief examination, he has stated that he does not remember from where the school records and clothes belonging to the deceased were seized i.e., 114 whether from the house of Althaf or Aarif and he does not know the recovery being made from the house of accused Nos.2 and 3 which indicates that this witness has not at all gone either to the house of accused No.2 or accused No.3. He has not supported the Investigating Officer, but he has stated that the articles are seized. Simply stating that articles belonging to the deceased were seized, without stating from where they have seized, will not help the prosecution. So, he does not know, in whose house the mahazar was drawn. But, the prosecution has not treated him as hostile.

131. The only evidence which is relied upon by the prosecution about the recovery being made from the house of accused is not proved by the prosecution. It is further observed in the cross-examination that he admits he is from Panja Village which is about 12 to 14 kms. away from the police station. This witness is a witness to all the panchnamas drawn on 16th to 18th and his house is situated nearly about 15 kms. away. He also admits that police have telephoned him and called him which shows the close relationship between him and police. There is no material to 115 show that panch witnesses are secured by issuing any summons. Even the said person is totally from a different place. He also admits that there were two cases against him. Hence, his evidence cannot be believed.

132. It is also the contention of the defence that he is a stock witness. It is to be noted that, in order to prove the fact that he is a stock witness, as suggested in the cross- examination, the defence did not place any material before the Court. If really, he is a stock witness, the defence counsel ought to have placed some material that he is a stock witness and he is a witness to other crimes, which has not been done. It is also pertinent to note that, P.W.23 himself states that he was called to police station by the Investigating Officer and he went to police station merely because he was called to police station, that itself cannot be a ground to come to a conclusion that he was closely associated with the police. No doubt, in the cross- examination, he did not mention the specific timings of the mahazar, but he categorically deposed before the Court that on 16.11.2008, number of mahazars were drawn and it took 116 14 hours to make the recovery. When such being the answer given by P.W.23, it is clear that he was present throughout along with the police while seizing the incriminating articles from the accused persons.

133. In the cross-examination of P.W.23, except eliciting the answer that police themselves called him and requested to become a witness, nothing worth is elicited. No doubt, in the chief examination, he states that accused No.2 led all of them to his house and produced the clothes, marks cards and certificates of the deceased, but again he states that he does not remember the same but the said items were seized. The documents which are marked before the Court i.e., Exs.P59 to P71 are original SSLC marks card, PUC marks card and other certificates of the deceased. It is the observation of the Trial Court that his evidence cannot be believed and he was not present at the time of conducting the mahazar and the said observation of the Trial Court is erroneous.

134. It is pertinent to note that the Investigating Officer, who has been examined as P.W.27, in his evidence 117 reiterates that recoveries were made at the instance of accused persons. While appreciating the evidence of Investigating Officer, the Trial Court in para 21, made an observation that Investigating Officer has not stated in which place the house of the accused is situated and from which place he took out the bag and produced it and who were all present at that time, nothing is stated. The evidence of Investigating Officer is vague and general and Ex.P52 will not help the prosecution.

135. It is further observed that when the place is known prior to the recovery and if it is shown by the accused, then there is no question of discovery on the basis of statement of accused. Even Ex.P53 regarding the seizure of number plates is also doubtful. Because according to Investigating Officer, the said number plates were found just near the place of murder. The other observation is that though body was found on 12.11.2008 itself, but till mahazar was drawn, number plates were lying there only near the place where the dead body found and this appears to be improbable. The recovery of M.Os.1 and 2 from the open 118 place has no evidentiary value that too when they are lying near the place where the dead body found for more than four days. This finding of the Trial Court is against the records and evidence.

136. On perusal of evidence of P.W.23, it is clear that accused No.1 led panch witnesses and Investigating Officer along with his team to the place where they have thrown the number plates. The number plates are marked as M.Os.1 and 2. P.W.23 specifically in his evidence in para 3 states that accused No.1 told that the number plates were thrown in the bush and the same were recovered. The mahazar was drawn in terms of Ex.P53 and those number plates are the original number plates of the vehicle.

137. It is also important to note that in the evidence of P.W.27 in para 24, he categorically states that immediately after accused No.1 shown the place of murder, he took all of them to a little distance and showed the place where he had thrown the number plates in the bush and mahazar was drawn in terms of Ex.P53. The very observation of the Trial Court that recovery of M.Os.1 and 2 119 from the open place has no evidentiary value that too when they are lying near the place where the dead body found for more than four days is nothing but a callous observation of the Trial Court in appreciating the evidence available on record which is against the evidence of P.W.23 and P.W.27. The trial Judge has irresponsibly appreciated the evidence as against the record and evidence available on record. Both the witnesses, P.Ws.23 and 27 have categorically deposed that accused No.1 pointed out the number plates in the bush and showed the place where he had thrown the original number plates of the vehicle and the same was recovered. But, the Trial Court has made an observation that since the place is an open place, no evidentiary value can be attached. It is pertinent to note the observation made by the Trial Court that evidence of Investigating Officer is vague and general in spite of the specific evidence given by the Investigating Officer with regard to the recovery is nothing but absurdity.

138. It is also pertinent to note that, the Trial Court has made an observation that the Investigating Officer has 120 stated that the accused produced the knife and he has seized the same in terms of Ex.P54. The said knife was identified as M.O.14. But the said knife was not used for the commission of offence, nor it has got any mark of the accused or deceased. So for what purpose, this Ex.P54 mahazar was drawn is not forthcoming and it will not help the prosecution in any way as the accused has not at all used any such weapon to murder the deceased.

139. It has to be noted that at the instance of accused Nos.1 and 3, talwars are seized but not the knife. Both the witnesses P.Ws.23 and 27 have categorically deposed that talwars are seized at the instance of the accused and it is specifically pointed out by both the witnesses that talwars are used only to cause threat and not for committing any offence. But the trial Judge makes an observation that seizure of such knife will not help the prosecution in any way and such observation is erroneous when no such knife was seized and only talwars are seized, that too, only to prove that those talwars are used for causing threat and also makes further observation that there are no blood stains on 121 the talwars. It is not the case of the prosecution that accused persons have used the said talwars to inflict the injuries, but only to cause the threat and hence, the Trial Court has committed an error in making an observation that knife was seized at the instance of the accused and does not contain the blood stains.

140. Regarding recovery of belongings of the deceased, mahazar was drawn in terms of Ex.P57. No doubt, it is clear from the evidence of P.W.23 wherein he states that he does not remember so as to recovery of bag is concerned, but he identifies the signature in Ex.P57-mahazar. Further, he deposed that the same are seized. Hence, it is clear that the total denial of the seizure of those items are not made. He categorically deposed that the things are seized in the house of accused No.2 by drawing mahazar.

141. It is to be noted that, on perusal of the documents Exs.P59 to P71 which are the marks card, diploma certificate and other certificates including the dairy of the deceased and evidence of P.Ws.1 and 3, it clearly reveals that the deceased was appointed as a driver 15 days 122 prior to the date of the incident. P.Ws.1 and 3 have also categorically deposed that he used to keep his belongings in the car itself and bag which contains the certificates which is marked as Ex.P20 clearly depict that those certificates are his educational certificates and he used to keep the same with him in the bag in the car itself and after his murder, the same was seized and recovered in the house of accused No.2.

142. The Trial Court, while appreciating the recovery in respect of the document is concerned, makes an observation that there was no reason for the accused to keep this bag and nobody has identified that this bag belongs to the deceased Praveen. Neither father of the deceased nor any family members of the deceased have identified the bag that it belongs to the deceased. So simply stating that the accused produced the bag from his house is the vague and general evidence of the police officer and it is not supported by panch witness. The very approach of the Trial Court is nothing but again an irresponsible appreciation of the evidence available on record. When the said bag contains the 123 original marks cards, certificates and so also a personal dairy of the deceased which he had kept along with the clothes belonging to the deceased and when the original documents are recovered at the instance of the accused, the trial Judge, in a callous manner comes to a conclusion that there was no reasons for the accused to keep the said bag and none of them have identified. The very documentary evidence available before the Court itself shows that they belong to the deceased and all the documents are original documents i.e., his SSLC, PUC, Diploma Marks Cards and other certificates.

143. Though P.W.23 admits that there were two cases against him, nothing is placed on record. No doubt, the admission of the said fact itself suffice. However, it is also not the case of the defence that those cases were pending and hence, he is supporting the police. The trial Judge makes further observation that he was resident of at a distance of 15 kms. from the place of police station. There is no bar to take a person as witness, if he is away from the police station and in the present scenario, it is very difficult 124 to expect a person to come forward to become a witness in a case of crime. When such being the case, mere distance of 12 to 15 kms. from the police station, cannot be a ground to discard the evidence of P.W.23. No doubt, he is also a witness to the mahazar which was drawn on 18th just after two days of earlier mahazars. Hence, his evidence cannot be disbelieved. The evidence of P.W.27 is consistent with the evidence of P.W.23. Recovery of C.D. Player and mobile were made at the instance of accused No.4, with reference to the same, the trial Judge makes an observation that evidence of P.W.27 is vague and general in nature. It is also observed that P.W.27, Investigating Officer did not mention anything as to how they went to the house of father-in-law of accused No.4 and from where they brought those articles.

144. On perusal of evidence of P.W.27, he categorically deposed in para 12 of his chief-evidence that on 19.11.2008, accused No.4 led panchas, himself and his team to his father-in-laws house and produced C.D. Player and mobile handset. Accordingly, mahazar was drawn in terms of Ex.P73. It is also his evidence that, accused No.4 in his 125 voluntary statement has stated that he has kept the C.D. Player and mobile in the house of his wife. Accordingly, he has recorded the voluntary statement in terms of Ex.P8 and thereafter, the accused led him to his father-in-laws house. But, the Trial Court erroneously makes an observation that with reference to how they went there and from where they brought those articles, nothing is stated. This is nothing but again a callous appreciation of the evidence. When P.W.27 categorically states that accused No.1 himself led the panchas, himself and his team to the house of his father-in- law and produced the same, it has been wrongly observed by the Trial Court that nothing is stated from where they brought the same.

145. The prosecution has proved its case by examining P.W.23 and also Investigating Officer, who has been examined as P.W.27, regarding recovery and seizure of car, which was seized by P.W.20. The evidence of P.W.20 is clear that when he made an attempt to stop the vehicle, they did not stop it but they moved further and parked the vehicle and ran away from the place. He had seized the said Innova 126 car by drawing mahazar. The recoveries of talwars, which are used for causing threat are at the instance of the accused persons. The belongings of the deceased which contains clothes, Marks Cards, certificates of the deceased, changed number plates and also the original number plates of the Innova car are seized at the instance of the accused. The C.D. Player of the Innova car was also seized from the house of accused No.4. No doubt, the phone sets are seized at the instance of the accused and whether it either belongs to the deceased or accused, there is no any material before the Court to ascertain to whom those mobile sets belongs to. But in the evidence, it is clear that those mobile handsets were also robbed from the driver of the lorry and other accused persons. The Trial Court has failed to appreciate the material collected by the Investigating Officer, who made his effort to recover the vehicle which was robbed and thereafter, body was found near the place where he was drowned. Thereafter, the movement of the accused persons in the Innova car, there were entries in the forest check post. The accused persons, who were in the Innova car were also identified by the witnesses and thus, each link has been 127 proved by the prosecution, since the case mainly rests upon the circumstantial evidence. In spite, the links are proved, the Trial Court has committed an error in not appreciating both oral and documentary evidence available on record in a right perspective. It appears that the very approach of the Trial Court, while appreciating the case, before coming to the conclusion, in each of the paragraphs itself, made an observation that prosecution has not proved the case which is evident from paragraph No.14 itself wherein, it has been stated that admittedly, nobody has seen the accused in the said car which is contrary to the material on record. The material on record does not disclose any material contradictions in the evidence of the prosecution and there is nothing on record to disbelieve the evidence of prosecution witnesses. The principles laid down in the judgment referred below is aptly applicable to the case on hand.

146. Having considered both oral and documentary evidence available on record, it is pertinent to quote the judgment of the Apex Court reported in (2015) 1 SCC (CRI) 663 in the case of State of Karnataka vs- Suvarnamma 128 and Another, wherein the Apex Court has referred the judgment in the case of State of U.P. vs- M.K. Anthony reported in 1985 SCC (CRI) 105 and extracted para No.10 of the judgment which reads as under: importance 10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. to some 129 The said principle is aptly applicable to the case on hand since, the trial Judge has committed an error in not appreciating the evidence available on record in a right perspective.

147. We also would like to refer the judgment of the Apex Court reported in (2011) 3 SCC (CRI) 102 in the case of Rameshbhai Mohanbhai Koli and Others vs- State of Gujarat wherein the Apex Court has held at para Nos. 35 and 36 that merely because panch witnesses turned hostile, is no ground to reject evidence, if the same is based on testimony of Investigating Officer alone. It is further observed that, in the instant case, it is not the case of the defence that testimony of Investigating Officer suffered from any infirmity or doubt.

35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt.

36. In view of the above principles and in the light of the discussion about the recovery as stated and concluded earlier, those materials produced by the prosecution are rightly connected these circumstances with the appellants. relevant, acceptable and 130 148. In the case on hand, except not collecting the mobile handsets of the deceased, there is nothing on record to show that the Investigating Officer committed an error and the same suffers from any infirmity or doubt.

149. The Apex Court in the case of Leela Ram (Dead) Through Duli Chand vs- State of Haryana and Another reported in (1999) 9 SCC525has held that in a criminal trial, contradictions, inconsistencies, exaggerations and embellishments are bound to occur. Minor embellishments and trivial discrepancies do not by themselves render the evidence of eyewitnesses unbelievable. Evidence should be considered from the point of view of trustworthiness. In criminal cases, corroboration with mathematical niceties should not be expected. The Apex Court at para Nos.9, 11 and 12 has observed as under:

9. "Be it noted that the High Court is within its jurisdiction being the first appellate court to re- appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its 131 entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony, reported in (1985) 1 SCC505:

1985. scc (Cri) 1

AIR1985SC48 In para 10 of the Report, this Court observed:

10. is undoubtedly necessary While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."

11. The court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speechless, some 132 start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.

12. sometimes in It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishments - sometimes there could even be a deliberate attempt to offer embellishment and their overanxiety they may give a slightly exaggerated account. The Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence though not however in the absence of the same. the evidence repulsion of 150. The Division Bench of this Court in the case of Boraiah @ Pujari Boraiah v. State by Thalak Police reported in ILR2004KAR2531has held with regard to the evidence of Investigating Officer, official act of the police have been regularly performed is a wise principle of presumption. The evidence of Investigating Officer is reliable. It is open for the accused to prove the same as unreliable as discussed by the Apex Court at para Nos.14 and 15 so also 133 with regard to Section 313 of Cr.P.C. at para Nos.17 and 18, which reads as hereunder: Officer. Investigation turned hostile. But Investigating Officer-P.W.14 14. In addition, the prosecution also places reliance upon the recovery of weapon-M.O. 1 at the instance of accused, to prove its case. The seizure panch-P.W.8 has the prosecution heavily relied upon the evidence of P.W.14-the Upon consideration of the relevant material on record relating to recovery, the Court is of the considered opinion that there is absolutely no reason as to why the evidence of independent witness-public servant i.e., should be disbelieved. The evidence of P.W.14-Inspector discloses that on getting information about the presence of accused at Chikkaullarthi, he went to the said place along with the staff and arrested the accused. The voluntary statement of accused- Ex.P9, was recorded. The accused led the Police and Panchas to the land called Sangammanavara Ajjanna Hola near Gajjiganahally bus stand and took out kodli (M.O.

1) from Jail bush. There is nothing on record the show that P.W. 14 has got any axe to grind against the accused and that he has acted partially.

15. In this connection, a reference may be made to the judgment of the Apex Court in the case of State Government of NCT of Delhi v Suni and Anr. reported in 2000(7) Supreme 728 wherein the Apex Court observed thus:

"It is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hand over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At the any rate, presumption are the Court cannot start with records police that the 134 untrustworthy. As a proposition of the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the Legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of the documents made contemporaneous with such actions" independent persons to presume law in In the instant case, we find that the evidence of P.W. 14 is reliable and there is no reason for us to suspect the truthfulness of the records of the police investigation. Merely because, P.W. 14 is the Investigating Officer, his version cannot be discarded on the ground of alleged interestedness. We do not find any reason to disbelieve the recovery of M.O. 1 on the basis of voluntary statement of accused.

17. Before parting with the appeal, we would like to note that in spite of repeated observations and directions issued by the Hon'ble Supreme Court as well as this Court in respect of recording of statements under Section 313 of the Cr.P.C. the Trial Judge has not complied with the basic requirements while recording the statement under Section 313 Cr.P.C. 135 18. Examination of the accused under Section 313 Cr.P.C. is not an empty or idle formality. The underlined object behind Section 313 of Cr.P.C. is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. Thus, said provision makes it obligatory on the part of the Court to question the accused on the evidence and circumstances appearing against him so as to apprise him the exact case which he is required to meet. Thus, each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to serious irregularity, vitiating the trial if it is shown to have prejudiced the accused. Apart from affording an opportunity the incriminating circumstances against him, it would also help the Court in appreciating the entire evidence. While deciding the criminal case, the Court has to consider the statement of the accused in the light of the evidence adduced by the prosecution and weigh such statements with the probabilities of the case either in his favour or against him. Hence, the questions to be put to the accused are to be framed with care and caution which should contain mainly the incriminating material against the accused. Recording of the statement under Section 313 Cr.P.C. is the last opportunity to explain any circumstance that may appear against him in the evidence. The accused should know as to what is the exact incriminating material against him. As such the Trial Courts shall frame questions on the basis of incriminating evidence against accused. In spite of repeated pronouncements on this aspect, it is seen from the record of the present case that the learned Sessions Judge has not given his due attention to this aspect while framing the questions under Section 313 Cr.P.C. The learned Sessions the accused to explain to for the accused 136 Judge has simply extracted the evidence of the prosecution witnesses at length, some of the questions are running into pages, without pointing out exact material against the accused. Many questions put to the accused under Section 313 Cr.P.C. by the Court below do not conform to the requirements of Section 313 Cr.P.C.

151. In the case on hand, there is nothing on record to come to the conclusion that the evidence of the Investigating Officer is unreliable. Having coupled with the evidence of P.W.23 and P.W.27 regarding recovery is concerned, the prosecution has proved the charges leveled against the accused.

152. We would like to refer to the judgment of the Apex Court in the case of Neel Kumar Alias Anil Kumar v. State of Haryana reported in 2012(3) SCC (Cri) 271. The Apex Court in para 30 of the judgment as held as follows:

30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. 137 153. In this case also the accused did not explain the incriminating circumstances proved against them while making statement under Section 313 of Cr.P.C. Having considered 313 statement of all the accused, except stating that they were arrested from their respective houses, they have not given any explanation with regard to the recovery of incriminating material at their disclosure statement, which has been proved by positive circumstances against them. Hence, the present citation is aptly applicable to the case on hand. The accused persons have not explained the incriminating circumstances.

154. Having considered the principles laid down in the judgments referred supra, material available on record, which has been discussed in detail above and also the findings of the Trial Court, it is clear that the observations made by the Trial Court is contrary to the evidence available on record. The Trial Court failed to take note of the gravity of the offence and also the material available on record and the findings given by the Trial Court is against the evidence of the witnesses and also material on record i.e., documentary 138 evidence. The Trial Judge in a callous manner and irresponsibly did not consider the material on record and throughout in the judgment, before discussing the material available on record, comes to a conclusion that the prosecution failed to prove the case beyond reasonable doubt. The said observation is clear that the Trial Court was proceeded in a prejudicial mind to acquit the accused and did not consider the material available on record in a right perspective. There are several circumstances to prove that the accused persons were indulged in committing similar type of crime. Other cases are also registered against them. Two of them already convicted and enlarged invoking Section 360 of the Code of Criminal Procedure. First of all, they have availed the Zen car for committing the similar offences. No doubt the witnesses have not supported the case of availing of Zen car from them but photos show that after availing the car, attended the marriage and thereafter used the car for committing the crime. It is clear that the other witnesses have deposed that the accused persons after availing the Zen car went in the said car, stopped and robbed the Innova car and have used the said Innova car for committing other 139 offences also causing threat to P.W.15 and separate case has been registered against them in respect of the said crime.

155. P.W.15 witnessed the said Innova car along with these accused persons and so also P.W.8 had witnessed these accused persons when they went in Innova car after changing the original number plate of Innova car. P.W.20 Police Inspector who had seized the Innova car also witnessed these accused persons in the said vehicle. P.W.25 also witnessed these accused persons when they were moving in Innova car. Thereafter, recoveries are made at the instance of the accused persons and the same is proved by examining P.W.23 and the evidence of Investigating Officer who has been examined as P.W.27 is also reliable. There is nothing on record to disbelieve the evidence of official witnesses. The principles laid down in the cases referred supra aptly applicable to the case on hand and the Court cannot expect mathematical niceties in a criminal case. When such being the material available on record, the Trial Judge has committed an error and the reasons assigned in the judgment is contrary to both oral and documentary evidence 140 and fails to appreciate the same in a right perspective which resulted in miscarriage of justice.

156. Having considered the material available on record, it is a fit case to come to a conclusion that the Trial Court did not consider the evidence available on record in right perspective and irresponsibly proceeded in a wrong footing in coming to the conclusion that the prosecution has not proved the case and the very appreciation of evidence available on record is nothing but proceeded in a prejudicial manner prejudging that the prosecution has not proved its case with an intention to acquit the accused which amounts to miscarriage of justice. Hence, we are of the opinion that the Trial Judge has committed an error in acquitting the accused and it requires interference of this Court by setting aside the order of acquittal.

157. In view of the discussions made above, we pass the following: ORDER The appeal is allowed; (i) 141 (ii) The impugned judgment and order of acquittal dated 15.03.2013 passed in S.C.No.29/2009 on the file of III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru is set aside; (iii) Accused Nos.1, 3 and 4 are convicted for the offences punishable under Sections 363, 392, 302, 201 read with Section 34 of IPC; (iv) Accused Nos.1, 3 and 4 are sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.10,000/- each for the offence punishable under Section 363 read with Section 34 of IPC and in default, to undergo simple imprisonment for a further period of six months; (v) Accused Nos.1, 3 and 4 are sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- each for the offence punishable under Section 392 read with Section 34 of IPC and in default, to undergo rigorous imprisonment for a further period of six months; (vi) Accused Nos.1, 3 and 4 are sentenced to undergo life imprisonment and to pay a fine of Rs.1,00,000/- each for the offence punishable under Section 302 read with Section 34 of IPC142and in default, to undergo simple imprisonment for a further period of one year; (vii) Accused Nos.1, 3 and 4 are sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.3,000/- each for the offence punishable under Section 201 read with Section 34 of IPC and in default, to undergo simple imprisonment for a further period of six months; (viii) All the sentences shall run concurrently; (ix) The Trial Court is directed to secure the presence of accused Nos.1, 3 and 4 and subject them to serve sentence and (x) Out of the total fine amount of Rs.3,69,000/-, Rs.3,50,000/- shall be payable to P.W.18, who is the father of the deceased on proper identification and the remaining amount shall vest with the State Government. PYR/MD/ST/CP Sd/- JUDGE Sd/- JUDGE


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