TMI Blog2022 (11) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... earing No.KA-04/MA-224 said to be used by Accused No.4. The said vehicles were seized through Accused Nos.6 and 7. These are all the circumstances indicating that accused persons had involved in committing the murder of deceased Lingaraju and also that they received supari amount from Accused No.8 / C. Govindaraju to eliminate the deceased Lingaraju, an RTI Activist and the Editor of Mahaprachanda , as contended by the learned Spl. PP. The prosecution has given more credentiality to the motive factor and also dying declaration termed as an affidavit of Exhibit P-26 and Exhibit P-116. The contents of the affidavit reveals that prior to the death of Lingaraju, his life was under threat. In order to prove the motive factor and dying declaration, the prosecution has relied on the evidence of PW-22, PW-69 and PW-87 and has banked upon the evidence of those witnesses inclusive of the materials got marked at Exhibits P26, P116, P39, P27, P28, P29, P349, P222, P220, P223 and Exhibit P391. The prosecution has proved the contents in the mahazar through the evidence of PW-18, PW-15 in respect of the mahazar at Exhibit P2, Exhibit P178 and Exhibit P308 and so also Test Identification Parade co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es have been subjected to examination including the material witnesses namely PW-1 and PW-2 who are eyewitnesses, it is seen that both PW-1 and PW-2 have given a go-by to the versions of their statements inclusive of the substance in the FIR said to be recorded by the Investigating Agency. Even the official witnesses who have been examined on the part of the prosecution relating to drawing of mahazar and also for having seized material objects marked as MO-1 to MO-54, but benefit of doubt has accrued on the part o the prosecution. In the criminal justice delivery system, when doubt arises in the mind of the Court, the said benefit shall be extended to the accused alone. Even though voluntary statements have been recorded and investigation has been carried out by the I.O. relating to laying of the charge-sheet against the accused and drew the seizure mahazar in their presence and in the presence of panch witnesses and though evidence has been adduced by the prosecution by subjecting to examination several witnesses, there are no worthwhile evidence to connect the accused with the crime. But the Trial Court has erroneously arrived at conviction by taking into consideration the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble under Section 150 read with Section 149 of the IPC. Further, Accused No.3 has been convicted also for offences punishable under Section 506-B read with Section 149 of the IPC. They have been sentenced to undergo rigorous imprisonment for two years for the offences punishable under Section 120-B read with Section 149 IPC and to pay a fine of Rs.2,000/- each along with default clause; further to undergo simple imprisonment for six months for the offence punishable under Section 143 read with Section 149 of the IPC and to pay a fine of Rs.2,000/- each along with default clause; further to undergo simple imprisonment for one year for the offence punishable under Section 147 read with Section 149 of the IPC and to pay a fine of Rs.1,000/- each along with default clause; further to undergo simple imprisonment for two years for the offence punishable under Section 148 read with Section 149 of the IPC and to pay a fine of Rs.3,000/- each with default clause; Accused No.1 was sentenced to undergo simple imprisonment for six months for the offence punishable under Section 150 read with Section 149 of the IPC and to pay a fine of Rs.2,000/- along with default clause; Accused No.3 was sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th default clause; further to undergo simple imprisonment for one year for the offence punishable under Section 147 read with Section 149 of the IPC and to pay a fine of Rs.1,000/- along with default clause; further to undergo simple imprisonment for two years for the offence punishable under Section 148 read with Section 149 of the IPC and to pay a fine of Rs.3,000/- with default clause; further to undergo rigorous imprisonment for six months for the offence punishable under Section 109 read with Section 149 of the IPC and to pay a fine of Rs.3,000/- along with default clause; further to undergo simple imprisonment for six months for the offence punishable under Section 150 read with Section 149 of the IPC and to pay a fine of Rs.2,000/- along with default clause; and to undergo rigorous imprisonment for life for the offence punishable under Section 302 read with Section 149 of the IPC and to pay a fine of Rs.25,000/- along with default clause. All the sentences of imprisonment were to run concurrently with a further direction that the entire fine amount was to be remitted to the State. 5. The appeal in Crl.A.No.1068/2020 pertains to one Gowramma, W/o. C. Govindaraju / Accused No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajpet Police as per Exhibit P1. Based upon her complaint, the said case in Cr.No.238/2012 was registered against unknown persons for offences punishable under Section 302 read with Section 34 of the IPC, 1860. In her complaint, the informant Uma Devi had stated that she was residing along with her husband Lingaraju and also her children and her mother at B.M.K. Layout, Bengaluru. Lingaraju was doing real estate business. In addition to that, he was also an Editor of a newspaper Maha Prachanda . On 20.11.2012, at around 6.45 a.m., her husband deceased Lingaraju was drawing water from the public tap near their house and his wife Smt. Uma Devi also went to fetch water from the public tap. In the meanwhile, three unknown persons had come running holding sickles and knife, who are said to have assaulted her husband Lingaraju with the aforesaid weapons. When she tried to rescue her husband from their clutches, she was also chased by the said unknown persons. When she came back, she found that three persons had assaulted her husband Lingaraju and done him to death. They had fled away from there towards Valmiki Nagar. It is further alleged that she can identify the assailants. Further, she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 233 Cr.P.C. On closure of the entire evidence on the part of the prosecution as well as the defence side, the Trial Court had heard the arguments advanced by the learned Spl. PP and so also the counter arguments advanced by the learned Defence counsel respectively. The Trial Court on appreciating the evidence of witnesses PW-1 to PW-90 including the documents for the prosecution at Exhibits P1 to P401 including the list of documents at Exhibits C1, C2, D1 and D2 exhibited for the accused and on an examination of the material objects marked namely MO-1 to MO-54, proceeded to convict the accused / appellants and sentenced them to undergo imprisonment for the offences as reflected in the operative portion of the order. 11. PW-1 / Uma Devi, is none other than the wife of the deceased Lingaraju. She had given her statement under Section 164 Cr.P.C. She is also a panch witness to the spot mahazar at Exhibit P2, to the seizure mahazar for seizure of weapons in the spot, panch witness to the seizure of cloths of herself and her son Karthik and she had also participated in the Test Identification Parade and she is also a panch witness to the photo identification of the accused per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said loan after pledging 500 grams of gold. 22. PW-14 / Lakshminarayana also has spoken on the same lines as that of PW-13 / Ramesh. 23. PW-15 / Revanna is the brother of Accused No.12. He has stated that Accused No.12 and Accused No.8, himself and his son have borrowed a loan of Rs.10 lakh each for construction of house, by pledging gold weighing 1 kg and 50 grams as security. 24. PW-16 / L. Krishnamurthy is alleged to be the panch witness to the seizure of mobile at the instance of Accused No.12. 25. PW-17 / Lokesh is also a panch witness who has stated about the place of conspiracy i.e., Ranganath Hotel. 26. PW-18 / Nagaraj was an employee on daily wage basis in Gopinatham Mistry Trial Camp who had stated that on 20.11.2012 at about 10.00 p.m., 10 persons had come near the Dormitory in Tata Sumo white colour vehicle and stayed in the dormitory and he gave the room for rent of Rs.400/- each. 27. PW-19 / Soundaraj was also an employee in the said Dormitory who was working as a cook in the said camp. He had stated that 8 male members and 2 female members had come in a Tata Sumo vehicle and stayed in the room and he had given them the room key and went to his house. 28. PW-20 / Sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards seizure of nighty, nikker, auto, two choppers, Rs.15,000/- at the instance of Accused No.7 and a panch witness to the seizure of motorcycle and Rs.1,000/- at the instance of Accused No.6, which are marked as Exhibits P17, P131 and P132. 41. PW-34 / Smt. Laxmi is the mother of Appellant No.3 / Accused No.3 who has given statement that her son, namely Accused No.3 had given her Rs.10,000/- as on 21.11.2012. 42. PW-35 / Manikantan is the son of Accused No.9 had stated that the mobile used by Accused No.9 belonged to him. 43. PW-36 / Uttham Kumar is a panch witness to the spot mahazar at Exhibit P2 and seizure of knife cover. 44. PW-37 / Shiva Prasad is said to be a panch witness to six mahazars namely, seizure of Rs.1,000/- at the instance of Accused No.5, seizure of chopper at the instance of Accused No.3, seizure at the instance of Accused No.2, to the seizure of three shirts at the instance of Accused Nos.1 to 3, to the seizure of Rs.1,25,000/- at the instance of Accused No.4, seizure of two mobiles and Rs.5,000/- at the instance of Accused No.10, which mahazars were marked as Exhibits P147 to P152. 45. PW-38 / Ramesh Y had given his statement as per PW-27. 46. PW-39 / S. Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the said materials and had given her report as per Exhibit P-182. 60. PW-54 / Manoj M. Huvale is the Police Inspector and an I.O. in part who is said to have collected the CDRs through e-main in respect of Cr.No.238/2012 of Chamarajpet P.S. 61. PW-55 / Uma Devi is the sister of Accused No.1. The said accused is said to have used the mobile of his sister, namely PW-55. 62. PW-56 / Partha Sarathy is a panch witness to the seizure of mobile said to have been used by Accused No.1. 63. PW-57 / Tarun Kumar is from the Mines and Geology Department who was a panch witness to the Photo Test Identification in respect of Accused Nos.5, 9, 10 and 12. 64. PW-58 / Ganesh is a panch witness to the seizure of mobile said to have been used by Accused No.1, which mahazar is marked as Exhibit P-90. 65. PW-59 / B.S. Siddaraju is a panch witness to the place of conspiracy at Ranganatha Hotel, Mysuru. 66. PW-60 / Bala Sundaram was said to be the owner of the auto rickshaw bearing No.KA-05/AA-2742 who had sold the said autorickshaw to one Dhananjaya and the said Dhananjaya had sold it to one Shivashankar in the year 2013 wherein the Chamarajapete Police seized the said autorickshaw. 67. PW-61 / Sande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 81. PW-75 / Nagarajaiah is a panch witness to name boards and photographer who took photos of place of occurrence, knife, knife cover. 82. PW-76 / Gopalakrishna is the Head Constable who has stated that as on 02.12.2012 he had arrested Jaheer and produced before the I.O. along with his report as per Exhibit P-296. 83. PW-77 / Muniraju is the Head Constable who took the dead body from the place of occurrence to Victoria Hospital and after the postmortem, he had handed over the dead body to the brother of the deceased. 84. PW-78 / Eshwarappa had brought the postmortem report and cloths of the deceased from Victoria Hospital and had given it to the I.O. 85. PW-79 / Balappa Nasannavar is the Police Constable who brought the CD from T.V. channel office and had given it to the I.O. 86. PW-80 / Venkateshappa is the Police Inspector who, on 20.11.2012 at about 8.00 a.m. had gone to the place of incident as per the instructions of Inspector Shivamallaiah. Police Inspector took shara on the complaint given by Smt. Uma Devi and instructed PW80 to register the case. Accordingly, PW-80 went to the Police Station and had registered the case in Cr.No.238/2012 as per Exhibit P1. The FIR is marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by Accused No.3. At the instance of Accused No.2, PW-81 further seized one chopper and a shirt. Further, he went along with Accused No.5 to his house and seized Rs.1,00,000/- from his house. After investigating the case, PW-81 / Shivamalavaiah filed the charge sheet against Accused Nos.1 to 7 for offences punishable under Sections 109, 120B, 143, 147, 148, 150, 302, 506-B read with Section 149 of the IPC. 88. PW-82 / Narsaiah, Manager of Palace Lodge of Ramanagara had stated that 7 persons had come to their lodge from Bengaluru in a white Zen car at about 2.30 p.m. and they booked room nos.16 and 17 and stayed therein. 89. PW-83 / Ramaiah is said to be the supplier in the said Palace Lodge, Ramanagara who has stated that he had supplied drinks and non-vegetarian food to the occupants of the room nos.16 and 17. 90. PW-84 / S. Adinarayana is the CCTV Servicing Technician who has stated that about 7 to 8 years back, the Chamarajapet Police had taken him to Ramanagara Palace Lodge and on instructions of the police, he had opened the DVR and removed its hard disk and had handed over the same to the police. 91. PW-85 / Umesh is a panch witness to the seizure of hard disk at Pala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution has proved the guilt of the accused persons relating to the offences reflected in the operative portion of the order in S.C.No.428/2013. It is this common judgment which is under challenge in these appeals by urging various grounds. 97. Learned Senior Counsel Shri B.V. Acharya for Accused Nos.1 to 3 / appellants in Crl.A.No.118/2021 has contended that PW-1 / Uma Devi is the complainant who had filed her complaint as per Exhibit P1. She being an eye-witness to the incident narrated in her complaint, had given a statement under Section 164 of the Cr.P.C. before the Magistrate having jurisdiction to deal the matters. It is further contended that PW-1 / Uma Devi is the panch witness relating to drawing of the spot mahazar and so also a panch witness to the seizure of weapons which were found in the scene of crime and a panch witness to the seizure of cloths of herself and her son Karthik. PW-1 and PW-2 had participated in the Test Identification Parade and is also a panch witness to the photo identification of accused persons who are said to have committed the murder of her husband namely deceased Lingaraju who was an RTI Activist and also an Editor of Mahaprachanda newspaper. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood stained cloths Statement of PW.1 and 2 u/s 164 of Cr.P.C. Test identification parade Photo identification parade CCTV footage Visiting and staying in Mistri trial camp, Gopinatham village. Blood stains in the clothes Conspiracy and motive 99. As regards eye witnesses PW.1 Umadevi, PW.2 Karthick, PW.4 Arun Kumar, PW.5 S.G.Lokesh, PW.6 Renukaradhya were examined on the part of prosecution but they did not support the case of prosecution. Further, it is contended that whatever the mobile phones and sim cards seized by the police in respect of these appellants does not belong to them as the same does not stand in their names. There is no evidence placed by the prosecution to show that these accused persons had used the said mobile phones or SIM cards. Mere call details are not sufficient to establish that they conspired each other for committal of the offence unless there is specific conversation between them and there is no evidence for the same. 100. It is the further contention of learned cousnel that a sum of Rs.7,000/- was seized from accused No.1. The voluntary statement of accused No.1 was recorded on 22.11.2012 as per Ex.P315, on 25.11.2012 as per Mahazar Ex.P.149, MO.33 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in this appeal. No incriminating evidence or circumstantial evidence has been stated against these accused persons. Therefore, it is not warranted to dwell in detail about the evidence of this witness PW-2 / Karthik who is the son of the deceased Lingaraju. 105. It is further contended that the Trial Court has committed a grave error in relying upon the evidence of PW-3 / Neeru by avocation as an Assistant Director, Cyber and Audio Forensic Truth Lab. She has stated in her evidence on the part of the prosecution that the hard disk was received as on 02.01.2013 at Truth Lab requesting her to examine the videos in the CCTV, DVR concerning the case and requesting for facial comparison. The same was sent by the I.O. namely Dy.S.P. Narcotic Drug Cell, CID, Bengaluru. On comparing the faces using morphological and anthropometric analysis, she found that 5 images seen in the video were matching with 5 suspects namely Accused Nos.1 to 5. However, in her cross-examination, she has stated that she is not competent to declare herself as an expert to analyze and give evidence on digital documents under the IT Act and further she has also admitted that with the help of video editing technolog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence against the appellants / accused in order to convict them. Hence, his evidence is also of no use to the case of the prosecution. 110. Evidence of PW-14 / Lakshminarayana as well as the evidence of PW-13 / Ramesh which are on the same lines, are also in no way useful to the case of the prosecution. Further, the evidence of PW-15 / Revanna being the brother of Accused No.12 is also in no way helpful to the case of the prosecution. PW-16 / L. Krishnamurthy, a panch witness to the seizure of mobile at the instance of Accused No.12 has denied the same. Further, PW-17 / Lokesh being a panch witness to the place of conspiracy in Ranganath Hotel has also turned hostile to the same. Hence, it is contended that their evidence also do not support the case of the prosecution. 111. It is further contended that the learned Sessions Judge had committed a grave error in relying upon the evidence of PW-18 / Nagaraj, a daily wages employee in Gopinatham Mistry Trial Camp. Though he had stated that on 20.11.2012 at about 10 p.m., 10 persons had come to the Dormitory in a Tata Sumo white colour vehicle and stayed in the same for a rent of Rs.400/- for each room, he has identified only Accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons. 117. PW-26 / L. Gopal had lodged a complaint before the BBMP against the deceased regarding encroachment of lake. He has stated that Accused Nos.8 and 12 had advised the deceased not to quarrel with each other. In his cross-examination, PW-26 has admitted that deceased Lingaraju had lodged a false complaint against power loom owners and has stated that he was torturing the neighbours in that area, which showed that there was a prior enmity between the deceased and others. It also revealed that deceased had many enemies in and around the society. However, the said evidence of PW-26 has not been properly appreciated by the Trial Court while convicting the accused persons. 118. PW-27 / Bomma Linga who had stated in his examination-in-chief that Accused Nos.1 to 4 had concealed their clothes near the dhaba, in the cross- examination has turned hostile to his statement. Further, PW-28 / Ravi who has spoken on the same lines as of PW-27, has also turned hostile to his statement. PW-29 / Chand Pasha who had stated that accused nos.1 to 3 had purchased six T-shirts, 3 pants and one kerchief from him, has also turned hostile and has not supported the case of the prosecution. PW-30 / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its P-147 to 152, has also turned hostile to the case of the prosecution. 123. PW-38 / Ramesh Y who has also spoken as per PW-27 has also turned hostile to his statements. PW-39 / S. Shankar, a panch witness of the seizure of Tata Sumo, seizure of Rs.7,000/- at the instance of accused No.1 as per Exhibit P-156, has also turned hostile to the case of the prosecution. Further, PW-40 / Keerthi who had given evidence on the same lines as per PW-39 has also turned hostile to the case of the prosecution. 124. It is further contended that PW-41 / Pavan Kumar being a panch witness to the search of the house of Accused No.8 and punch witness to the seizure of mobile at the instance of Accused No.1. PW-42/ Saravana is alleged to be a panch witness to the seizure of two mobiles at the instance of Accused No.12 which is marked as Exhibit P-161. PW-43 / Kondaiah is a panch witness to the Palace Lodge at Ramanagara Town, which mahazar is marked as Exhibit P-143. PW-44 also has spoken on the same lines as of PW-43. However, it is contended that the evidence of the above witnesses namely PW-41 to PW-44 is in no way helpful to the case of the prosecution. 125. It is further contended that the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he received the information to conduct the TIP in Cr.No.238/2012 of Chamarajapet P.S. Accordingly, she is said to have conducted TIP on 07.01.2013 in respect of Rangaswamy, Shankara, Raghavendra, Chandra, Shankara @ Gunda and Velu. Thereafter, witnesses PW-1 / Umadevi and PW-2 / Karthik were secured and they are said to have identified three accused persons namely Raghavendra, Chandra and Shankara @ Gunda. However, it is contended that there is an inordinate delay in conducting the TIP. It is stated that prior to the TIP, the accused persons were produced before the Court without putting face mask and also their photos were displayed in newspapers and also in television. Therefore, it is contended that there is no legal sanctity or value attached to the TIP and hence the evidence of this witness is required to be rejected in toto. 129. It is further contended that the Trial Court has committed a grave error in relying upon the evidence of PW-53 / Malathi who is the FSL Scientific Officer. She has deposed that as on 11.12.2012, she received 15 materials in the laboratory and examined the said materials. She has given her opinion as follows: 1) Presence of blood detected in Article N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his witness has also not supported the case of the prosecution. Hence, it is contended that the evidence of these witnesses is in no way helpful to prove the charges against the accused persons. 132. PW-57 / Tarun Kumar is a witness from the Mines and Geology Department. He is said to be a panch witness to the Photo Test Identification in respect of Accused Nos.5, 9, 10 and 12. He has admitted in his examination that he had not applied leave to the office at the time of drawing the mahazar and also had not obtained permission from his higher officers. He has further admitted that prior to TIP, photos of the accused persons were displayed in newspapers, televisions and also the accused were produced before the Court without wearing face mask. It is therefore contended that the photo TIP has no legal significance for consideration in this matter. 133. PW-58 / Ganesh though was a panch witness to the seizure mahazar at Exhibit P-90 in respect of seizure of mobile used by Accused No.1, he has turned hostile to the said seizure and hence his evidence also does not help the case of the prosecution. 134. It is further contended that PW-59 / B.S. Siddaraju, a panch witness to the place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Assistant Revenue Inspector had given the details of the hotel but has not stated in respect of whose house the certificate was issued. Hence, it is contended that her evidence is in no way helpful to the case of the prosecution to prove the guilt of the accused persons. PW-68 / Smt. Chandramma being the mother of Accused No.2 though had stated in her examination that her son Shankar had called her through mobile, however, she had denied it in her cross-examination and has turned hostile to the case of the prosecution. 138. The evidence of PW-69 / Ashwini, Dy.S.P., Lokayuktha is only in respect of Accused Nos.8 and 12 in respect of the Lokayuktha case. However, no evidence has been put forth against all the accused persons and hence it is contended that her evidence also would not aid the case of the prosecution. 139. PW-70 / Byrojirao, Head Constable had stated that he had carried the FIR and handed it over to the Jurisdictional Magistrate at 2.00 p.m. on 20.11.2012. However, it is stated that there is an unexplained delay of 6 hours in reaching the FIR to the said court. The distance between the police station and Jurisdictional Magistrate being only 3 to 4 kms., it is contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ways collect better evidence to establish the guilt of the accused. 142. It is further contended that PW-73 / Stanley, Nodal Officer of Bharti Airtel has stated in his evidence that on 30.01.2013, the CID police had given requisition through e-mail to provide call details of mobile numbers namely 9008687866, 9632933599, 9738606022, 9972133896, 9980046187, 9591717159 and 9945850261 and customers application forms. Accordingly, PW-73 is said to have provided all the details as per Exhibit P-248. However, the crossexamination of the said witness reveals that PW-73 had not furnished the copy of the customers applications and call details. The said mobile numbers did not belong to the accused persons and the details regarding the owner of the mobile and as to who was the user of the same has also not been stated by the said witness. Hence, it is contended that the evidence of this witness being vague and general, is not useful to the case of the prosecution. 143. PW-74 / Rathnakar Nayak being the Nodal Officer of BSNL Company has stated that as on 28.01.2013, Police Inspector, CID had given requisition letter to provide the call details of mobile no.9449815395 for the period 01.08.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkateshappa is the Police Inspector who, on 20.11.2012 at about 8.00 a.m. had gone to the place of incident as per the instructions of Inspector Shivamallaiah. Police Inspector took shara on the complaint given by Smt. Uma Devi and instructed PW-80 to register the case. Accordingly, PW-80 went to the Police Station and had registered the case in Cr.No.238/2012 as per Exhibit P1. The FIR is marked as Exhibit P-300. He had visited Ramanagara Palace Lodge along with Accused No.10 and had drawn the mahazar which is marked as Exhibit P-163. He also went to Gopinatham mistry along with Accused No.10 where Accused No.10 had showed the place where they stayed there on 20.11.2012 and thereafter, PW-80 recorded the statements of Nagaraju, Assistant Manager of Mistry Trial Camp of Soundara Raju, care taker of the said camp. On 12.12.2012, he took Y.S. Adinarayana, CCTV Technician and his staff visited Ramanagara Palace Lodge and secured panchas and saw the CCTV clipping and as on 19.11.2012 he saw the footage of Accused Nos.1 to 6 entering the lodge and collected the hard disk in respect of CCTV and DVR from the technician and seized the same under a seizure mahazar. He had recorded the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accused Nos.1 to 8 and they had shown the bloodstained cloths. On 24.11.2012 he further recorded the voluntary statement of Accused Nos.2 to 4 and seized Zen car at the instance of Accused No.4 and some cash. On 25.11.2013, he took Accused No.3 and seized a chopper produced by Accused No.3. At the instance of Accused No.2, PW-81 further seized one chopper and a shirt. Further, he went along with Accused No.5 to his house and seized Rs.1,00,000/- from his house. After investigating the case, PW-81 / Shivamalavaiah filed the charge sheet against Accused Nos.1 to 7 for offences punishable under Sections 109, 120B, 143, 147, 148, 150, 302, 506-B read with Section 149 of the IPC. 151. However, in the cross-examination of PW-81, it is elicited that dagger type chopper was recovered from the spot between 12.20 to 1.20 p.m. Though PW81 had gone to the spot at 7.15 a.m., it is contended that there is no reason as to why the said chopper was not seized at the earliest point of time. It is further contended that though finger print experts and dog squad had come to the spot between 8.30 a.m.and 9.30 a.m., they did not take the finger prints on MO-3, which showed that MO-3 was planted one. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that deceased Lingaraju had many enemies in and around the society and therefore chances of his enemies having killed Lingaraju cannot be ruled out and there are chances that appellants / accused have been roped in without any incriminating evidence. 152. PW-82 / Narsaiah, Manager of Palace Lodge of Ramanagara had stated that 7 persons had come to their lodge from Bengaluru in a white Zen car at about 2.30 p.m. and they booked room nos.16 and 17 and stayed therein. However, he has not supported the case of the prosecution and has turned hostile. 153. PW-83 / Ramaiah is said to be the supplier in the said Palace Lodge, Ramanagara who has stated that he had supplied drinks and non-vegetarian food to the occupants of the room nos.16 and 17. However, he has also turned hostile and has stated that he did not give any statement to the police as per Exhibit P-359. 154. PW-84 / S. Adinarayana is the CCTV Servicing Technician who has stated that about 7 to 8 years back, the Chamarajapet Police had taken him to Ramanagara Palace Lodge and on instructions of the police, he had opened the DVR and removed its hard disk and had handed over the same to the police. However, his cross-examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of storing and date of processing the data has not been mentioned. He has also admitted that while copying from one system to another, there are chances of adding, deleting, altering of program, etc. He has further submitted that there are cases against their channel and the Hon ble Supreme Court has directed them that no sting operation could be conducted without permission of the Court under the circumstances that it is a fraud channel. Hence, it is contended that his evidence also is of no significance. 160. PW-90 / K. Tilak Chandra is also an I.O. in part who was appointed as I.O. in the Special Investigating Team as on 18.12.2012, after 28 days from the date of the crime. Major portion of the investigation was over even prior to his arrival in Cr.No.238/2012. He had sent requisition to the Jurisdictional Magistrate to record the statements of PW-1 and PW-2 under Section 164 of the Cr.P.C. Further, on 27.12.2012 he had sent a requisition of the Medical Officer of Victoria Hospital to examine the weapons and give an opinion. On 29.12.2012, he wrote a letter to the Director of Truth Lab, Bengaluru to examine the hard disk said to have been seized at Palace Lodge, Ramanagara. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused No.3 during TIP is not sufficient because left eye of accused No.3 is defective and in TIP, similar persons are not placed along with accused No.3 for proper identification. The TIP was conducted after lapse of 45 days of arrest of accused persons. 164. It is further contended that the photograph identification was conducted by PW.88 on 8.2.20213. That is after lapse of 78 days from the date of arrest. It is important to note that PWs.1 and 2 have not supported the case of prosecution regarding photo identification and more over identification conducted by the police inspector is hit under Section 162 of Cr.P.C. The CCTV footages as per MO.13 and the CD as per Ex.P81 is not sufficient to prove the guilt of accused persons, mere stating that the accused persons stayed at Palace Lodge at Ramanagar is not sufficient to say that they have committed the murder and as the incident took place at Bangalore around 6.45 a.m. to 7 a.m. there is no CCTV footage nor any evidence to show or to establish that these accused persons had left the lodge on the day of incident early in the morning to reach the place of incident. On the other hand PW.3 who is an expert had deposed in her cross e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly. considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. Identification proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 164 Cr.P.C. statement of prosecutrix, held, is not enough to convict appellant Section 164 Cr.P.C. statement is not substantive evidence and can be utilized only to corroborate or contradict the witness vis- -vis statement made in court. (v) 1999 Crl.L.J.1936 Audumbar Digambar Jagdane vs. State of Maharashtra. Criminal Procedure Code ( 2 of 1974), Section 164 Statement under witness turning hostile statement even if proved, cannot be used as substantive evidence. It is contended by the learned Senior counsel Shri B.V. Acharya as well as Shri Vishnumurthy for Accused Nos.1 to 3 that though as many as 90 witnesses have been subjected to examination and cross-examination to prove the guilt of the accused, the major witnesses have turned hostile and they did not withstand their statements including the panch witnesses to the spot mahazar, seizure mahazar and other seizure mahazar of weapons including the TIP proceedings, motive factor, conspiracy, CCTV footage. Even other independent witnesses did not withstand the versions of their statements to prove the guilt of the accused. Except the public service police personnel who conducted the investigation, nobody else has supported the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitting the offences. Hence, the Trial Court having convicted this accused in spite of this inconsistent evidence is without any basis and is bad in law. 169. PW-81 who is the I.O. in part who came to the spot at around 11.45 a.m. had asked PW-1 / Uma Devi whether she would give an oral or a written complaint to which she replied that she would give a written complaint got written by somebody. Accordingly, PW-81 received the complaint at the spot and set the criminal law into motion by recording an FIR. However, the scriber of Exhibit P1 was not examined or was not identified or his signature was not attested in Exhibit P1. Hence, it is contended that this aspect goes to show that the contents of Exhibit P1 was not known to PW-1 / Uma Devi and hence she has turned hostile before the Court. Further, it is contended that PW-1 had not dictated the contents of Exhibit P1 but only with an intent to implicate Accused No.8, Exhibit P1 complaint has been created by the prosecution. Further, the name of Accused No.8 is not mentioned in Exhibit P1, which aspect has been completely ignored by the Trial Court. 170. It is further contended that that Trial Court has erred in holding that Exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered a conviction judgment against the accused. Therefore, it requires intervention in these appeals by re-appreciating the evidence and scrutinizing the evidence analytically. 173. It is further contended that the Trial Court has gravely erred in holding as per the affidavit dated 18.06.2010 at Exhibit P26, Accused No.8 and others have threatened deceased Lingaraju. Deceased Lingaraju was an RTI activist who was complaining against so many persons and has filed various affidavits in this regard against various persons. Hence, the Trial Court has erred in holding that there was a serious threat to deceased Lingaraju by Accused No.8 which had continued till his death and hence that Exhibits P26, 27, 29, 116, 220, 223, 349, 385, 391 and PW-87 evidence were proved as per Section 32(1) of the Indian Evidence Act. However, in order to attract Section 32(1) of the Indian Evidence Act, the proximity of time is very essential and more particularly, no allegation against this fact has been made, which has been completely ignored by the Trial Court. 174. It is further contended that PW-87 / K. Druvakumar though had stated that on 20.11.2012 the deceased Lingaraju receiving threatening calls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the incident of assault on the person of her husband for the reason that under a misconception that her husband Lingaraju was the one who was responsible for a raid which came to be conducted on his residential premises by the Lokayukta police and action needed be taken against the assailants of her husband. Thereafter, the case in Crime No.238/2012 which came to be registered on the strength of the complaint filed by PW-1 / Smt. Uma Devi, for an offence which is made penal under Section 302 read with Section 34 of IPC came to be investigated and upon completion of the investigation of the crime, the Investigator submitted a charge sheet against 12 named in the final report including the appellant for offences under Sections 120-B, 109, 143, 147, 148, 150, 302 read with Section 149 of IPC. 176. It is his contention that accused Nos.8 and 12 are lugged into the case only with the aid and assistance of Section 120-B of the IPC on the that he had conspired with his companion accused in the case to do away with the life of the deceased Lingaraju. Upon the accused against whom the final report is filed, pleading not guilty to the charges leveled against them, the matter went up for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 Shivaprasad was examined to speak to recovery of weapons under Exs.P147 and 152. PW.38 Ramesh was examined as panch witness in respect of recovery of weapons, cash and mobile phone under Exs.P147, 152 and 154. PW.39 Shankar and PW.40 - Keerthi are the panch witnesses for seizure of car and cash under Exs.P124, 156 and 157. PW. 41 Pawan Kumar is the panch witness for seizure of mobile phone under Ex.P159. PW.42 Saravana is the panch witness for Exs.P161 under which mobile phone is said to have been seized. PW.43 Kondaiah is the examined for the panchanama drawn and marked as Ex.P163 with regard to the place where some of the accused said to have stayed. PW.44 Prasanna is the supplier in a Bar and was examined to speak to Ex.P163. PW.47 Shivaraj was examined to speak to Ex.P159 regarding seizure of mobile phone. PW.48 Satish was examined in respect of Ex.P.106 seizure of mobile phone. PW.49 Shivakumar was examined in respect of Ex.P106. PW.58 Ganesh is the Revenue Inspector who was examined to speak in respect of Ex.P190. PW.85 Umesh was examined to speak in respect of Ex.P306 drawn by palace lodge. But all these witnesses who are examined on the part of the prosecution did not wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Executive Magistrate, Bangalore North Taluk who conducted the Test Identification Parade at the Central Prison, Bengaluru and her evidence with regard to the test identification of the assailants of the deceased by PW.1 Uma Devi and PW.2 Karthik the wife and son respectively of the deceased is of no consequence for the reason that PWs.1 and 2 have not identified the assailants of the deceased during the trial of the case when they came to be examined by the prosecution. 181. In respect of electronic, scientific and medical evidence the following witnesses were examined by the prosecution during the trial to connect the accused inter se in the case vis- -vis the calls interse alleged to have been made by using certain mobile phones. PW.71 Rajesh.K. is the Nodal Officer, Vodafone who did not say anything against the accused other than furnishing to the investigating officer the chart said to contain the out-going calls made from mobile phone bearing No.8722806803. Further the evidence of PW.74 Ratnakar Naik who is the Nodal Officer of BSNL he did not say anything against the accused other than furnishing to the investigating officer the chart said to contain the out-going calls mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that the blood group of the deceased was O positive is not placed on record for being read as evidence in the case. But the evidence of Dr.Malathi, the official attached to the FSL who is said to have been examined the stains of blood found in certain material objects do not even remotely indicate that the blood group of the stains found on the material objects so examined by her is of O positive, instead, she only says that it belonged to O group. 183. PW.46 Dr. Pradeep Kumar who was examined on the part of the prosecution conducted the autopsy over the dead body of the deceased and the post mortem report is marked as Ex.P166 in addition to the opinion given by him with regard to the possibility of the injuries found on the person of the deceased having been caused with the weapons said to have been seized at the instance of the assailants of the deceased. It is contended that the testimony of this witness could be used by the prosecution only for the limited purpose of establishing that the death of Lingaraju was a homicidal one and nothing more or less. It is so for the reason that the witnesses who were examined to speak to the recovery said to have been effected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed offence. The impugned judgment rendered by the trial Court is illegal, perverse and opposed to the principles of criminal justice delivery system. Therefore, sought for allowing the appeals by setting aside the impugned judgment of conviction rendered by the trial Court. 186. In support of his arguments, the following reliances have been placed by the learned senior counsel: (i) Ram Kishan Singh vs. Harmit Kaur and another (1972) 3 SCC 280 In this judgment, the Hon ble Supreme Court has held that a statement under Section 164 of the Cr.P.C is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the Cr.P.C could not have produced a different result by reason of the conclusions of the Sessions Judge as to rejecting the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh as unreliable, untruthful and unworthy of credence (ii) Narsinbhai Haribhai Prajapati vs. Chhatrasinh and others AIR 1977 SC 1753 In this judgment, it is held that we are prepared to assume in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. (iv) Satye Singh and another vs. State of Uttarakhand (2022) 5 SCC 438 In this judgment it is observed that at this juncture, let us regurgitate, the golden principles laid down by this Court in Sharad Birdhichand Sarda vs. State of Mahashtra reported in 1984 (4) SCC 116. This court while drawing the distinction between must be and may be observed as under in para 153: 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 188. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case, SCC at p.39, SCC (Cri) at pp.318-19 where this court observed thus: [SCC para 30, p.43 : SCC (Cri) p.322]: Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstances, if other circumstances point unfailingly to the guilt of the accused. The said principles have been resta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R. (v) Ravinder Singh v. State of Punjab (AIR 2022 SC 2726) In this judgment, at para 10 it is held as under: 10. The conviction of A2 is based only upon circumstantial evidence. Hence, in order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. This court has consistently held in a long line of cases [See Hukam Singh v. State of Rajasthan AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contended that the Trial Court has erroneously given a finding by rendering a conviction judgment as there is no individual charge framed against the accused. However, the deceased Lingaraju gave a complaint to Lokayuktha against Accused No.8 / Govindaraju and Accused No.12/ Gowramma in relation to power loom workers and asking for information under the RTI Act and it is stated that Accused No.8 had instigated and abetted other accused persons to commit the murder of Lingaraju. However, as regards the said charge No.5, absolutely there is no linking circumstance to prove that Accused No.8 had got any connection directly or indirectly with Accused Nos.4, 5 and 7 and hence the question of convicting Accused no.8 with the aid of Section 109 read with Section 149 of the IPC, does not arise. 191. PWs 1, 2 and 8 who are the wife and sons of the deceased had not made any allegations against Accused No.12. Even when deceased filed a complaint against Accused No.12, no such documents were produced and the deceased filed PCR No.65/2012 against Accused No.8. However, no action was taken and only it was a suo moto case registered by the Lokayuktha Police as per Exhibit P220. Deceased Lingara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raj Ali vs. State of Assam (2008 (16) SCC 228) which states that every circumstances appearing against the accused must be put to him specifically, and failure to do so, would vitiate the trial if accused is shown to be prejudiced which has resulted in a miscarriage of justice. 192. These are the contentions made by the learned Senior Counsel Shri C.V. Nagesh relating to Accused Nos.8 and 12 who are the appellants in Crl.A.No.54/2021 and Crl.A.1068/2020. Learned Senior counsel has referred to the judgment of conviction rendered by the Trial Court in S.C.No.428/2013 dated 28.10.2020 as well as certain circumstances as to how the Trial Court has convicted the accused giving credentiality to circumstantial evidence. But in the instant case though several witnesses have been subjected to examination, but those witnesses have given a go-by to the versions of their statements. PW-1 / Uma Devi is the complainant at Exhibit P1. In her presence, Exhibit P2 / spot mahazar was drawn by the I.O. PW-2 / Karthik is the son of the deceased and even PW-8 / Arjun are material witnesses on the part of the prosecution have been subjected to examination, but they did not withstand the versions of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons in respect of eliminating the deceased Lingaraju, none other than the husband of PW-1 / Uma Devi who is the author of the complaint. PW-1 / Uma Devi has not withstood the versions of her statement made under Section 164 Cr.P.C. inclusive of the contents at Exhibit P1 complaint. Further, PW-2 / Karthik, son of deceased Lingaraju also has not withstood his statement made under Section 164 Cr.P.C. 195. It is specifically contended that it is relevant to refer to the evidence of PW-1 / Uma Devi and similarly PW-2 / Karthik and PW-4 / Arun. PW-4 is the son of PW-1 / Uma Devi and so also the son of Lingaraju, an RTI activist and Editor of Mahaprachanda daily local newspaper. PW-5 / Lokesh and PW-6 / Renuka Aradhya are said to be eyewitnesses to the incident narrated in the complaint at Exhibit P1. But all these witnesses have turned hostile to the versions of the incident narrated in the complaint at Exhibit P1. PW-1 / Uma Devi and PW-2 / Karthik have given their statements under Section 164 of the Cr.P.C. which have been recorded by the Judicial Magistrate, but have disowned their statements relating to the incident narrated. PW-1 in her evidence has specifically stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers who had accessed the various mobile numbers and analyzed CDRs, CAFs and they have categorically admitted that no mobile handsets or SIM numbers stood in the names of any of the accused persons. 198. The prosecution has though has marked Exhibits P109, 110 to prove that the accused persons stayed at the Guest House in Tamil Nadu, both the said documents are scribed in Kannada language, which prima facie indicates that both the said documents were forged, for the purpose of the case. 199. Hence, it is contended that according to the prosecution, none of the accused persons had stayed at Palace Lodge on 20.11.2012, the date of the incident. Further, there is no connecting material to point out that the accused were staying at Palace Lodge, Ramanagar on 19.11.2012 and 21.11.2012. CCTV footage is not proved beyond all shadow of doubt. That apart, the prosecution has also not adduced any iota of evidence that Accused Nos.1 to 6 were present in Bengaluru or at the place of occurrence at the relevant date as on 20.11.2012. Further, though so many recoveries were made vide various PF numbers, the said PF numbers are in no way connected to the appellants. Viewed from any angle, it is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 972 SC 656]. (iii) Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129 ] : It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the 2 (1984) 4 SCC 116 guilt of the accused. Again, the circum stances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. State of Madhya Pradesh1 will have a bearing on this issue where Justice A.K. Ganguly, writing for the Division Bench succinctly summarised the legal position as follows: 24. It may be pointed out that identification test is not substantive evidence. Such tests are meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. 10. The infirmities in the conduct of the Test Identification Parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the identifications are held in police presence, the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of section 162 of the Code. (See Ramkishan Mithanlal Sharma vs. The State of Bombay) 11. The next important flaw is that while the pahchan patra of the TIP mentions that three lungis were presented, the related witness was shown only one lungi for identification as per the own statement of the witness Filim Sai (PW-3). Such infirmities would 2 (1955) 1 SCR 903 therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dates of events. It is contended that on 16.04.2010 accused No.12 became Corporator vide Gazette notification as per Ex.P387. Deceased Lingaraju filed affidavit against Accused Nos.8 and 12 on 18.06.2010 and 22.06.2010 as per Ex.P26 and Ex.P116. On 06.09.2010 deceased asked for police protection from Accused as per Ex.P391. This document also refers above shown Exs.P26 and 116. As per Ex.P385 deceased Lingaraju filed complaint before the Lokayukta authority on 23.06.2012. Ex.P27 is the letter correspondence made by deceased to His Excellency Governor seeking permission to prosecute accused No.12. Complaint came to be filed before Lokayukta against accused No.8 in PCR No.65/2012 as per Ex.P349. Exs.P28 and 29 are the applications Form A under the RTI Act seeking information regarding action report against Accused Nos.8 and 12. Ex.P220 is the FIR dated 08.11.2012. On 09.11.2012 Lokayukta held raid / house search of accused Nos.8 and 12 as per Ex.P223. Accused Nos.8 and 12 availed loan of Rs.20 lakhs through accused No.12 s brother and his son PW.15 from BCC bank as per Exs.P102 and 103. On 20.11.2012 at 6.45 deceased was done to death. On 20.11.2012 PW.1 lodged complaint Ex.P1 and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Ex.P.318 of accused No.8 who lead to his house and then accused No.12 produced mobile MO.43 of SIM 9449815395. On 30.11.2012 accused No.4 as per his voluntary statement Ex.P316 lead the investigating team and showed Maruthi Zen car bearing Regn.No.KA04 MA 224. On 01.12.2012 accused No.12 produced mobiles of accused No.8 and the same were marked as MOs.44 and 45. On 06.12.2012 accused No.10 as per his voluntary statement Exs.P324 and 325 lead and produced in his house two mobiles MOs.46 and 47 and cash of Rs.5000/- MO.52. On 09.12.2012 accused No.9 as per his voluntary statement Ex.P331 lead and produced from his house MO.53 Rs.47,000/- and one Nokia mobile MO.48 with SIM. On 12.12.2012 accused No.12 was arrested at Tanjavur who was with her brother PW.12 Krishnamurthy. On 13.12.2012 PW.12 Krishnamurthy produced MO.49 bearing SIM 9945850261 which was used by accused No.12. On 01.01.2013 the voluntary statement of PW.1 as per Ex.P19 and voluntary statement of PW.2 as per Ex.P73 were recorded. On 07.01.2013 test identification parade and on 08.02.2013 photo identification parade were conducted. On 12.02.2013 PW.54 who collected the call details submitted analysis report to the PW.90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, that rests on circumstantial evidence alone. It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidences proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch witnesses, if he so desires. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases : a. Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624 b. Prithi v. State of Haryana (2010) 8 SCC 536 186 c. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 d. Ramkrushna v. State of Maharashtra (2007) 13 SCC 525 20. PW2 and PW3 were the persons who had met the deceased first after she was put on fire. They were not the eye-witnesses to the occurrence. It is an admitted case that they were the first persons to meet the deceased after she suffered the burn injuries and had taken her to the hospital. This was their consistent version when stated before the police and even before the court. Contrary to their statement made to the Investigating Agency, in the Court, they made a statement that the deceased had told them that she had caught fire by chimney and her burn injuries were accidental. This was totally contrary to their version given to the police where they had stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of hostile witnesses as under: 70.1 The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. 70.2 In the instant case, some of the material witnesses i.e. B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. 70.3 Some omissions, improvements in the evidence of the PWs have been pointed out by the learned Counsel for the appellants, but we find them to be very trivial in nature. 71. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of city no serious lapse in the identification parade conducted by the Magistrate accused identified in the Court as well no reason to disbelieve testimony of witnesses. (F) Mohan Lal and another vs. Ajit Singh and another (1978 AIR (SC) 1183) Section 313 of Cr.P.C., Evidence Act, 1872, Section 3 Statement of accused evidence on record disproving exculpatory part of the statement part, which accords with the evidence, permissible to accept and act upon. (viii) In respect of dying declaration On the basis of Ex.P.26 affidavit dated 18.06.2010 to 19.11.2012 on which date PW.87 Dhruva Kumar, advocate heard from deceased regarding life threat leads to the circumstances of transactions resulting in death as per Section 32(1) of Indian Evidence Act. The Hon ble Supreme Court has addressed this issue in the case of Sudhakar vs. State of Maharashtra (2000 AIR (SC) 2602), Kans Raj vs. State of Punjab and others (2000 AIR (SC) 2324) (ix) In respect of 65B Certificate the reliance of Hon ble Supreme Court in the case of Anvar P.V. vs. P.K.Basheer and others at para 24 it is held as under: 24. The situation would have been different had the appellant adduced primary evidence, by making availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC. (x) In respect of conspiracy, the case of K.R.Purushothaman vs. State of Kerala (2006(12) SCC 631 it is held as under: To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well-known rule governing circumstantial evidence viz., ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bits D1 and D2, it is relevant to state that Accused Nos.8 and 12 had hatched a criminal conspiracy along with the other accused persons and are said to have hired Accused Nos.1, 2 and 3 to eliminate deceased Lingaraju who was an RTI Activist and so also an Editor of Mahaprachanda patrika. 207. Accused Nos.1 to 3 are said to be supari killers and as such, in order to pay the said supari killers, Accused No.12 / Gowramma had pledged her gold ornaments through her brother PW-15 / Revanna and his son Hemanth at Bengaluru City Co-operative Bank, Avalahalli and are said to have drawn an amount of Rs.9,74,000/- each after deducting the share amount, appraiser charge and so also application fee. The said amount was handed over by Revanna to Accused Nos.8 and 12. Whereas Exhibits P21 to P24 reveals that Accused No.8 / C. Govindaraju and Accused No.12 / Gowramma s daughter s marriage was arranged at Palace Grounds, Bengaluru as on 26.11.2012. On 19.11.2012, loan was borrowed by PW15 and so also his son from the Bangalore City Cooperative Bank. Lokayuktha Police had conducted raid on the house of Accused Nos.8 and 12 as on 09.11.2012. Lingaraju being an RTI Activist and an Editor of Mahaprac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rachanda , the accused persons are said to have stayed in Gopinatham Mistry Trial Camp. PW-19 / Soundar Raj has stated in his evidence that he was working in the said lodge and he has identified Accused No.3 who had stayed in the dormitory on 20.11.2012. After committing the murder of the deceased Lingaraju, accused persons are said to have travelled to Hogenaikal falls in Indica car and Tata Sumo car and stayed in the said lodge. But there is no worthwhile evidence on the part of the prosecution as contended by the learned counsel for the accused. 212. The prosecution has given more credentiality to the motive factor and also dying declaration termed as an affidavit of Exhibit P-26 and Exhibit P-116. The contents of the affidavit reveals that prior to the death of Lingaraju, his life was under threat. In order to prove the motive factor and dying declaration, the prosecution has relied on the evidence of PW-22, PW-69 and PW-87 and has banked upon the evidence of those witnesses inclusive of the materials got marked at Exhibits P26, P116, P39, P27, P28, P29, P349, P222, P220, P223 and Exhibit P391. The prosecution has proved the contents in the mahazar through the evidence of PW-18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r signed by him; or of the date of a letter or other document usually dated, written or signed by him. (3) or against interest of maker. When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. (4) or gives opinion as to public right or custom, or matters of general interest. When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5) or relates to existence of relationship. When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons as to whose relationship 25 [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (6) or is made in will or deed relating to family affairs. When the statement r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased Lingaraju was seen collecting water from a public tap. Accused Nos.1, 2 and 3 are said to have assaulted him with means of chopper and dagger and caused his death on the spot. The wife of Lingaraju namely Smt. Uma Devi / PW-1 and their son Karthik / PW-2 had made efforts to save Lingaraju from their clutches. But Accused No.2 is said to have shown a chopper and caused life threat to them. These are the evidence which have been considered by the Trial Court to render a conviction judgment. But there is no worthwhile evidence let in by the prosecution to prove the guilt against Accused Nos.1, 2 and 3 inclusive of Accused Nos.8 and 12 and so also Accused Nos.4 to 7 and 9 to 11. Whereas PW-1 and PW-2 are the star witnesses but they have given a go-by to the version of the complaint at Exhibit P1 and their statements as recorded under Section 164 of the Cr.P.C. which are marked as Exhibits P-19 and P-73. 214. Learned Senior Counsel Shri B.V. Acharya for Accused Nos.1 to 3 and learned Senior counsel Shri C.V. Nagesh for Accused Nos.8 and 12 and so also the counsel on record for all other accused, have taken us through the evidence of PW-1 / Uma Devi who is none other than the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 2011-12, deceased Lingaraju and defeated candidates of BBMP election had gone to PW-87 / Druvakumar and requested him to draft a complaint in view of the fact that Accused Nos.8 and 12 had submitted a false affidavit before the Election Commission at the time of filing nomination to Corporation Election. Accordingly, PW-87 had drafted a complaint and had given it to deceased Lingaraju, which was filed before the Lokayuktha and the BBMP. For that reason also enmity developed between deceased Lingaraju and Accused No.8. 217. PW-26 in his evidence has stated that the deceased Lingaraju, an RTI Activist and the Editor of Mahaprachanda had lodged a complaint against him before the BBMP regarding encroachment of lake and he had also lodged a complaint against power loom owners. In this regard, Accused No.8 / C. Govindaraju being a relative of Lingaraju, had tried to pacify the quarrel between the power loom owners and Lingaraju. However, Lingaraju had not heeded to the advise of Accused No.8 / C. Govindaraju. 218. It is stated that deceased Lingaraju had approached PW-87 / Druvakumar saying that he intended to file a complaint against the owners of the power looms with the Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rized affidavits have been filed by deceased Lingaraju. Therefore, it cannot be said that it is a dying declaration and consequently, the contention made by the learned Spl. PP Shri Ashok N. Naik in this regard, does not hold any substance. 222. The prosecution has got marked Exhibits P.387, P.382, P.26, P.116, P.385, P.27, P.349, P.28, P.29, P.22 and Exhibit P.220, P.23 and Exhibit P.391 are the exhibits that were got marked on the part of the prosecution relating to motive factor in order to eliminate deceased Lingaraju. But at a cursory glance of the evidence of PW-22, PW-26, PW-69 and PW-87 in the examination-in-chief and also cross-examination, it is seen that they do not corroborate with any other independent evidence of PW-1 / Uma Devi, or PW-2 / Karthik or with PW-8 / Arjun. Though these witnesses have been subjected to examination on the part of the prosecution, they did not absolutely support their case relating to eliminating the deceased Lingaraju as narrated in the complaint at Exhibit P1 and so also the spot mahazar at Exhibit P2 conducted by PW-81 in the presence of panch witnesses. During the mahazar, a steel dagger in the shape of knife with one handle was seized a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... She has given a go-by to the version of her complaint at Exhibit P1 inclusive of the contents of the mahazar at Exhibit P2. This mahazar was conducted in the presence of PW-1 / Uma Devi. She has identified the spot and the dead body of her husband marked as Exhibit P3 and Exhibit P16. 224. PW-1 / Uma Devi and her son PW-2 / Karthik had given a statement as contemplated under Section 164 of the Cr.P.C., which is marked as Exhibit P19 and also statement of her son Karthik and so also got marked by recording statement under Section 164 Cr.P.C. PW-1 / Uma Devi and her son PW-2 / Karthik did not support the case of the prosecution as regards the contents of their statements made under Section 164 of the Cr.P.C. PW-1 / Uma Devi was summoned to Parappana Agrahara Jail whereby she had identified the persons being arraigned as accused. Photos of the accused persons were marked at Exhibits P35 to P38. Photos of Accused Nos.1 to 5 also appear. But she did not give evidence on the part of the prosecution to identify the accused persons even though identification parade was held by PW-52, the Taluk Executive Magistrate. 225. PW-2 / Karthik, son of the deceased Lingaraju has stated in his eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and obtained his signature at Exhibit P-74(a). Though the said Test Identification Parade was conducted by PW-52 and PW-1 / Uma Devi and PW-2 / Karthik had identified the accused persons, however, both of them have not withstood their statements given before the Investigating Officer and even as regards Exhibits P.74 and P.75 relating to identification of the accused persons by them. 227. At a cursory glance of the evidence of PW-1, PW-2, PW-52, PW-57, PW-64 and PW-88 in respect of identifying the accused persons who are alleged to have involved in committing the murder of the deceased, it is seen that their evidence does not find corroborated with the independent evidence or even with the evidence of PW-1 / Uma Devi, the author of the complaint at Exhibit P1 or even with the evidence of PW-2 / Karthik, the son of deceased Lingaraju. 228. PW-1 / Uma Devi and PW-2 / Karthik have given statements before the Judicial Magistrate as under Section 164 of the Cr.P.C. and their statements have been marked at Exhibits P.19 and P.73 respectively. Even though they have given their statements relating to assaulting the deceased Lingaraju by means of deadly weapons, but they have not withstood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and were acquainted with each other prior to the incident. Further, Accused Nos.8 and 12 had been to the house of Lingaraju to extend the marriage invitation card of their daughter. It further indicates that Lingaraju and Accused No.8 were in talking terms with each other, which is also one of the circumstantial evidence. But as regards the motive factor to indicate that there was an animosity developed between them and conspiratorial meetings were held among the persons arraigned as accused to eliminate the deceased Lingaraju by engaging supari killers, there is no evidence forthcoming on the part of the prosecution to prove the guilt against the accused. There is no cogent, corroborative and positive evidence relating to the said aspect on the part of the prosecution. 230. Based upon the complaint at Exhibit P1 filed by PW-1, the case in Cr.No.238/2012 came to be registered by the Chamarajpet police for offences initially under Section 302 read with Section 34 of the IPC. PW-1 / Uma Devi even though she being the author of the complaint and also being the wife of the deceased, she has not supported the case of the prosecution. Inclusive of that, her son PW-2 / Karthik has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates that the prosecution did not facilitate worthwhile evidence to convict the accused for the alleged offences. Viewed from any angle, the prosecution though had adduced evidence by subjecting to examination in all PWs 1 to 90 and several documents have been got marked inclusive of the material objects and so also had recorded voluntary statements of the accused and even disclosure statements of the accused, it is on the statement of Velu at Exhibit 310, Voluntary statement of the accused Umashankar @ Bhavani at Exhibit P311, voluntary statement of the accused Raghavendra @ Raghu marked at Exhibit P313, and further voluntary statement of the aforesaid accused marked at Exhibit P313(a), voluntary statement of the accused R. Shankar at Exhibit P314, further voluntary statement of the accused Raghavendra @ Raghu at Exhibit P314(a), voluntary statement of Rangaswamy at Exhibit P.315, voluntary statement of the accused Chandra at Exhibit P.316, voluntary statement of accused Shankar at Exhibit P.317, voluntary statement of the accused C. Govendaraju at Exhibit P.318, voluntary statement of the accused Jaheer at Exhibit P324, voluntary statement of accused D. Loganath at Exhibit P331, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go-by to the versions of their statements and they have been examined as PW-1, 2, 4 to 12, 15 to 17, 21, 22, 28 to 44, 47 to 49, 55, 56, 59, 62, 63, 68, 82, 83, 85 and 86. Whereas, at a cursory glance of the evidence of these witnesses, none of the independent witnesses have supported the case of the prosecution to incriminate any circumstances against the appellants / accused. In spite of that, the Trial Court has erroneously arrived at a conclusion to convict the appellants / accused for offences punishable under Section 109 read with Section 149 and Section 302 read with Section 149 of the IPC, 1860 and so also for other offences for which charges were leveled against them. 235. Out of ninety witnesses even though 44 witnesses have given their evidence on the part of prosecution, but all of them are official witnesses and none of the evidence of those witnesses is directly incriminating against the appellants / accused. Further, even though documentary evidence has been adduced, there are no clinching circumstances against the appellants / accused in order to come to the conclusion that the accused had committed the murder of the deceased Lingaraju as narrated in the theory of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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