Prashanth vs The State of Karnataka

Mohan M. Shantana Goudar, J—The judgment and order of conviction dated 17.06.2011 passed by the Fast Track Court, Channarayapatna in Sessions Case No. 24/2006 is the subject matter of these three appeals.

The accused were charged with offences punishable under Sections 396 and 397 of IPC both read with 34 of IPC, so also they were charged with offences punishable under Sections 302 and 307 both read with Section 34 of IPC. The trial Court held that the accused are liable for conviction under Sections 396 and 397 of IPC, however, acquitted the accused of the offences under Sections 302 and 307 read with Section 34 of IPC.

Criminal Appeal No. 818/11 is filed by convicted accused No. 1(A1); Criminal Appeal No. 1337/11 is filed by convicted accused No. 2(A2); Criminal Appeal No. 406/12 is filed by convicted accused Nos. 3, 4 and 5 (A3, 4 and 5).

This is yet another case of ghastly murder during course of committing dacoity. Case of the prosecution is that A1 - Manu was residing in the house diagonally opposite to the house of the complainant - (PW1); A2 is the friend of A1; both A1 and A2 are residents of Channarayapatna and they were students at that time. A3, 4 and 5 are from Shimoga town. On the date of the incident i.e., on 24.08.2005, PW1 and her husband (PW6) wanted to attend the house warming ceremony of their friend at Channarayapatna and hence, PW6 told his wife (PW1) that he would come back to the house at about 12.00 noon for taking PW1 to attend the house warming ceremony of their friend and by that time PW1 was requested to be ready. So saying PW6 left the house. PW1 got herself ready to attend the house warming ceremony function. She had worn the gold ornaments at that point of time. She was waiting for her husband to come to the house for taking her to the house warming ceremony. She was looking through the window while waiting for her husband. At that point of time, she saw A1 coming in front of the house of PW1 along with another person (A2) on the motor cycle; A1 got down from the motor cycle; A2 went towards the backside of the house of PW1 and returned to the same place where A1 was standing. They talked for some time with each other. When PW1 was inside the house, A1 came with a steel cup/tumbler asking for curds; Since PW1 was knowing A1, inasmuch as, he was residing in a diagonally opposite house, she did not suspect A1; She opened the door and consequently, A1 came inside the house; PW1 went inside the house in order to get curds; by the time she returned back to the main door from kitchen, three other accused (A3, 4 and 5) were already inside the house and they bolted the main door of the house from inside; though PW1 asked A1 as to why the door is being bolted from inside, her request was turned down and A3, 4 and 5 who were armed with choppers and knife started assaulting PW1; consequent upon which PW1 sustained bleeding injuries on the head and other parts of the body; She cried loudly because of pain she suffered; Smt.Mehrunnisa - the maid servant working in the house of PW1 from the back side of her house rushed inside the house for helping PW1. All the accused chased Mehrunnisa (deceased) for about 12 to 15 feet and committed her murder in the house by assaulting her with weapons brutally; PW1 fell down pretending as if she is dead in order to save her life; accused having felt that PW1 has also expired, robbed of her gold ornaments and ran away from the scene. The incident is said to have been witnessed by PWs 2 to 5 through the window. PW 6 - the Husband of PW1 came back to his house as promised at about 12.00 pm in order to take his wife for attending the house warming ceremony. At that point of time, he saw the main door of the house opened; He saw PWs 2 to 5 also in front of the house. He also saw A1 going away from the scene on a motor cycle with accused No. 2. He also saw the other three accused following the motor cycle. When he entered the house, he saw his wife with bleeding injuries fallen on the ground; he also saw the dead body of Mehrunnisa in the house. Immediately, he shifted his wife (PW1) to Channarayapatna Government Hospital in order to save her life; while proceeding from his house, he requested PWs 2 and 3 to look after Smt.Meharunnisa who had fallen in the house; PW1 was administered first aid at Channarayapatna Hospital and thereafter, she was shifted to Manipal Hospital, Bangalore for further treatment. Immediately, after admission of PW1 to Channarayapatna Hospital, she gave the history of the incident as "assault by Manu and others in her house at 12.00 pm on 24.8.2005." Subsequently, the hospital sent a memo as per Ex. P. 35 to the jurisdictional police station intimating them of medico-legal case. The first information came to be lodged by PW1 - Smt Bhagyalakshmi as per Ex. P. 1 at about 2.30 pm in Channarayapatna Government Hospital. Consequently, PW28 - the Sub-inspector of police of Channarayanapatna Town Police Station went to the hospital and recorded the statement of PW1 as per Ex. P. 1 in the hospital. Based on such complaint, Crime No. 127/05 came to be registered in Channarayapatna Police Station. FIR as per Ex. P. 36 was dispatched to jurisdictional Magistrate. PW 27 - the Inspector of Police completed the investigation and laid the charge sheet. During the course of investigation, the investigating officer recovered the weapons used for commission of the weapons and the gold ornaments robbed by the accused.

In order to prove its case, the prosecution in all examined 28 witnesses and got marked 36 exhibits and 32 material objects.

On behalf of the defence, 2 witnesses were examined and got marked 6 exhibits. DW1 is the father of A1 and DW2 is the mother of A3. The trial Court, on evaluation of the material on record, as aforementioned, convicted all the accused of the offence punishable under Section 396 read with 34 of IPC and sentenced them to undergo imprisonment for life and R.I. for 7 years for the offence under Section 397 of IPC.

Sri Hasmath Pasha, learned advocate appearing on behalf of the accused has taken us through the material on record and fairly submits that the prosecution has proved its case beyond reasonable doubt as against A1. However, he submits that the complaint - Ex. P. 1 restricts the case against four accused only and not against 5th accused; since offence of dacoity encompasses minimum of five accused, according to him the accused could not have been convicted for the offence punishable under Section 396 IPC. He submits that at the most the accused can be convicted under Sections 394 or 397 of IPC. He further draws attention of this Court that the presence of PWs 3 and 4 is not mentioned in the complaint of PW1; PW2 has admitted that by the time himself and PW3 came to the spot, police were already there; PWs 2 and 3 are not the eye witnesses; the evidence of PWs 4 and 5 also cannot be believed inasmuch as, they have turned hostile to the case of the prosecution; neither PW1 nor PW6 did mention about the name of A2 either in the complaint or in the statement before the police. Initially, only two persons apart from PW1 entered the house, as is clear from the statements made in the complaint by PW1. Thus, according to him, false case is foisted by the prosecution against the accused for the offence under Section 396 of IPC. He further submits that A1 was aged about 20 years at the time of incident and now, he is aged about 30 years; he has completed his B''com degree and therefore, he may be shown leniency while imposing the sentence inasmuch as, he has fully reformed himself.

Smt Geetha Rattihalli - learned counsel appearing on behalf of the accused submitted that Test Identification Parade was not held by the prosecution; none of the prosecution witnesses had seen A2 and none of them were knowing the name of A2 and consequently, his name did not figure either in the complaint or in the statement of PW6 during the course of investigation; the motor cycle in which A1 was a pillion rider had stopped quite a long distance away from the house of PW1 and therefore, PW1 could not have seen the face of the rider of the vehicle; PW6 did not notice the presence of A2 while he entered the house and he also did not know as to who A2 was. Thus, according to him, A2 is falsely implicated.

Sri D Nagaraja - advocate for A3 to A5 argued supporting the arguments of Sri Hasmath Pasha.

Sri S Sampangiramaiah - Amicus Curiae tried to make out a case in favour of the accused by almost reiterating the very contentions as mentioned supra. According to him, the recovery of the gold ornaments is artificial. Serologist report and the FSL report marked as Exs.P. 33 and 34 are not helpful to the case of the prosecution inasmuch as, the blood grouping has failed. He further submits that the gold ornaments are not identified by anybody.

The arguments of defence counsel are vehemently opposed by SPP 2 - Sri Keshava Murthy. He fully supported the judgment of the Court below contending that the version of PW1 - the injured eyewitness is fully supported by versions of PWs 2 and 3; the recovery of gold ornaments is proved beyond reasonable doubt; the recovery of weapons is also proved by the prosecution in its entirety. The gold ornaments are identified by PW1 - the owner of the gold ornaments; the recovery panchas have supported the case of the prosecution; thus, according to him, the prosecution has proved its case beyond reasonable doubt to show that it is a clear case of murder while committing dacoity.

PW1 is an injured eyewitness. She is the wife of PW6. She has deposed about the actual incident. She has specified as to the specific overt act of A1, 3, 4 and 5; she has deposed that A2 was standing outside the house along with motor cycle; she has identified the gold ornaments - MO Nos. 6 to 12; she has lodged the complaint as per Ex. P. 1 based on which the crime came to be registered.

PWs 2 and 3 are the eyewitnesses to the incident; they saw the incident through the window of PW1s house;

PWs 4 and 5 are the tenants residing in the house of PW1 during the relevant point of time and eye witnesses, but have turned hostile. They were supposed to depose before the Court about the actual incident.

PW6 is the husband of PW1. He came back to the house at about 12.00 pm. He saw A1 and 2 going away on the motor cycle after the incident. He also saw three other accused following A1 and 2.

PW7 is the witness for panchnama regarding seizure of clothes of the deceased after post mortem examination; PW7 is the panch for Ex. P. 5;

PW8 is the witness for spot mahazar Ex. P. 4 under which MOs 19 to 24 were seized.

PW9 is the inquest pancha. The inquest report is at Ex. P. 6.

PW10 is the witness for panchanama relating to recovery of ornaments - M.O. Nos. 6 and 9 under Exs.P. 7 and 8 respectively.

Based on the voluntary statement of A3, MO. 6 - jewel was recovered and seized. At the behest of A1, the gold chain - MO9 came to be seized under mahazar - Ex. P. 8. Both these accused were arrested on 14.09.2005 at 7.15 am. The recovery was effected on 15.9.2005. PW. 11 is another witness for recovery mahazars - Exs.P. 9 and 10 under which the jewels and cash are recovered at the behest of A. 4 and 5. Ex. P. 9 is the recovery of gold jewels and cash at the behest of A4 whereas A10 is the panch relating to the recovery of one bracelet and one ring at the behest of A5.

PW12 is yet another witness for recovery mahazar - Ex. P. 11. Under the said panchanama, one chopper - MO. 29 and one knife - MO. 30 were recovered at the instance of A1 and 3 respectively on 14.9.2005.

PWs. 13 and 14 are the witness for recovery mahazars Exs.P. 12 and 13. Ex. P. 12 - mahazar relates to recovery of chopper at the instance of Accused Nos. 4 and 5. Ex. P. 13 is the mahazar regarding seizure of clothes of injured PW1 (MOs. 1 to 5). Though PW13 did not depose specifying the name of A5, she has deposed specifically against A4. However, PW14 - another witness for recovery panchanama (Exs.P. 12 and 13) has fully supported the case of the prosecution by deposing that the recovery is made at the behest of A4 and A5.

PW. 15 is a witness for recovery mahazar - Ex. P. 14 under which a gold chain (MO. 10) came to be recovered at the instance of A2 - Prashanth.

PW-16 who was supposed to depose about the Mahazars - Exs.P. 15 and 16 relating to the recovery of jewels at the instance of A. 4 and A5 from the shop of Anand Jewellers and Sri Ram Jewellers has turned hostile. However, the owner of Anand Jewellers Shop (PW17) and the owner of Sri Ram Jewellers (PW20) have supported the case of the prosecution by deposing in support of the mahazars - Ex. P. 17 and Ex. P. 20 respectively. Under Ex. P. 17, M.O. 6 - a gold chain is seized from the shop of PW17. PW. 17 admits that he had purchased MO6 - chain which was sold by A3 and A5. So also PW20 admits that he has purchased Jewels (MOs. 6, 8 and 9) from A3 to A5 which came to be seized under mahazar Ex. P. 20.

PW18 is the Junior Engineer who drew the sketch of scene of offence as per Ex. P. 18.

PW19 is the doctor who conducted the autopsy over the dead body of deceased Meharunnissa. Post mortem report is at Ex. P. 19.

PW21 is another doctor attached to Government Hospital, Channarayapatna. She is the doctor who has admitted PW1 in the hospital at about 12.25 PM i.e., immediately within 25 minutes after the incident in question. She recorded the history as stated by PW1 that Manu and others assaulted her in her house at about 12.00 pm on that day. She was the one who treated PW1 at about 12.25 PM and issued the wound certificate as per Ex. P. 21. Thereafter, the victim was referred to higher medical centre and consequently, PW1 was taken to Manipal Hospital, Bangalore.

PW. 22 is the police constable. He delivered the first information report - Ex. P. 22 to the jurisdictional Magistrate.

PW. 23 is the manager of Ganesha Lodge, Channarayapatna. He has turned hostile to the case of the prosecution. Ex. P. 23 - is the register maintained by the said lodge. This evidence is not of help either to the case of the prosecution or to the defence.

PWs. 24, 25 and 26 are the police constables. They helped the investigating officer during the course of investigation.

PW. 25 has deposed that on 15.9.2005, he apprehended A4 and A5 on the say of A3 and at the time of apprehension, they had one Yamaha motor bike.

PW. 27 is the inspector of police. He completed the investigation and laid the charge sheet.

PW. 28 is the Sub-inspector of Police Station attached to Channarayapatna Town. On receipt of the hospital memo as per Ex. P. 35, he went to the hospital and recorded the complaint of PW1 as per Ex. P. 1 and registered the crime.

From the aforementioned, it is clear that the case of the prosecution mainly depends upon:

(a) the ocular testimony of the eyewitness, more particularly, the injured eyewitness - PW1.

(b) The version of mahazar witnesses relating to the recovery of gold ornaments

(c) The version of mahazar witnesses pertaining to the recovery of weapons used for the purpose of incident

The prosecution has relied upon certain other circumstances also to bring home the guilt against the accused beyond reasonable doubt.

PW. 1 is the injured eye witness. She is the wife of PW. 6. The incident has taken place within the house of PWs. 1 and 6. The scene of offence is not in dispute. Even otherwise scene of offence mahazar at Ex. P4 and the inquest mahazar at Ex. P6 clearly reveal that the dead body of Meharunnissa was lying in the house of PWs. 1 and 6. It is also not in dispute that PW. 1 has sustained grievous injuries on the head and other parts of her body. The wound certificate at Ex. P21 relating to the wounds sustained by PW. 1 discloses that she has sustained compound fracture of parietal bone apart from other injuries.

We have already mentioned that Sri Hasmath Pasha, learned counsel appearing on behalf of accused No. 1 fairly admitted that the prosecution has proved its case beyond reasonable doubt. Even the learned advocates appearing on behalf of the other accused did not seriously dispute the said fact. Learned advocate appearing on behalf of accused No. 2 as well as the leaned amicus curiae have tried to point out certain improvements made by the witnesses before the Court. Even if the improvements pointed out by the learned advocates for the defence are eschewed from consideration, the balance does not tilt in favour of the accused, particularly in the light of the evidence on record.

PW. 1 has deposed that her husband (PW. 6) had informed her in the morning of 24.8.2005 that they had to attend a house warming ceremony in the afternoon on that day; thus, she got ready by 12.00 Noon and was waiting for her husband-PW. 6 to come and take her for attending the function; she was wearing gold ornaments at that point of time; at that time, she incidentally saw through the window of her house while waiting for her husband, accused No. 1 - Manukumar and accused No. 2 - Prashanth coming in front of her house on a Hero Honda motor cycle; accused No. 1 got down from the motor cycle; accused No. 2 took the vehicle around the house of PW. 1 and once again came back to the same place where accused No. 1 was standing and stopped the said vehicle; accused Nos. 1 and 2 were talking with each other; other three accused also came there; thereafter accused No. 1 came to the house of PW. 1 on the pretext of asking for curds (heppu); since PW. 1 was knowing him, she opened the door without suspecting and went inside the house to bring the curds and when she came back to verandah, she saw accused Nos. 1, 3, 4 and 5 were inside her house; immediately all those accused bolted the main door of the house from inside; she objected for bolting the door; all the accused assaulted her with choppers and knife; she fell down crying; on hearing the cries of PW. 1, Meharunnissa (deceased) rushed to verandah from backyard of the house; Meharunnissa is none other than the maid working in the house of PW. 1 during the relevant point of time; on seeing Meharunnissa, the accused chased her for about 12 to 15 feet and assaulted her, consequent upon which she also collapsed on the ground; thereafter accused robbed the gold ornaments from the person of PW. 1 and went away; the scene is witnessed by PWs. 2 to 5. This portion of the evidence is meticulously deposed by PW. 1 before the Court. She has specifically deposed about the overt acts of accused Nos. 1, 3, 4 and 5. She has also deposed that accused No. 2 was also outside near the motorcycle. She has deposed that accused assaulted her as well as Meharunnissa; after falling on the ground she pretended as if she is dead in order to save herself; accused Nos. 1, 3, 4 and 5 having felt that PW. 1 is also dead, went away from the scene with the robbed gold ornaments worn by PW. 1. She has also deposed about the treatment taken by her and about lodging of the complaint before Channarayapatna Police Station. She identified the gold ornaments (MO. Nos. 6 to 12) shown to her as belonging to her. Though PW. 1 is subjected to lengthy cross-examination by the defence, nothing worth is elicited. Even in the cross-examination, she has reiterated about the incident in question including the factum of robbing of gold ornaments by the accused. She has fairly deposed that accused No. 2 was waiting outside the house.

The evidence of PW. 1 fully supports the version of PW. 1 as found in the complaint at Ex. P1. As aforementioned, the complaint came to be lodged at about 2.30 p.m. i.e., within 21/2 hours of the incident in question. Even prior to lodging of the complaint, PW. 1 has given the history before the doctor-PW. 21 who admitted PW. 1 in the hospital that Manu (accused No. 1) and others assaulted her in her house at about 12 Noon on 24.8.2005. It is clear from Ex. P21, the wound certificate that such history is given by PW. 1 on 24.8.2015 at 12.25 p.m. itself before the doctor, i.e., within 25 minutes after the incident in question.

The defence counsel tried to persuade the Court by arguing that story as put up by the prosecution before the Court is exaggerated and drew the attention of the Court to Ex. P1, which discloses that accused No. 1 and two others only entered the house of PW. 1. It is contended by the defence that the complaint is lodged against four persons and not against five persons.

Such contention of the defence cannot be accepted. PW. 1-complainant was in utter shock. She was all alone in the house, apart from Meharunnissa while the incident took place. Meharunnissa was brutally murdered and PW. 1 had sustained compound fracture of parietal bone. Thus, in our considered opinion, there might be confusion in the mind of the complainant while lodging the complaint, inasmuch as the complaint came to be lodged within 2 1/2 hours in the hospital. More over, the complaint cannot be equated to encyclopedia. A complaint cannot be expected to have all the details meticulously. The purpose of investigation is to find out the truth prima facie. It is only during the course of investigation, the Investigating Officer may find out certain more material in favour of the prosecution. However, it cannot be disputed that Ex. P1 contains almost all the details. There may be some confusion in the mind of PW. 1 with regard to numbers of accused. The complainant has specified that the action should be taken against accused who had come inside her house and assaulted. PW. 1 being an innocent lady, during the relevant point of time might not have thought that accused No. 2 who was standing near the motor cycle outside her house was not the actual culprit. In that view of the matter, she might have given the complaint against four persons, which does not mean that accused No. 2 is innocent. During the course of investigation, the police found that accused No. 2 is also involved in the crime and hence, charge sheet is also laid against him. The prosecution has put forth legal evidence before Court to prove its case in its entirety against all the accused, including accused No. 2. We find that the evidence of PW. 1 is natural and blemishless. It fully supports the case of the prosecution as found in Ex. P1.

PWs. 2 and 3 have also supported the version of PW. 1 by deposing about the assault on PW. 1 and the deceased Meharunnissa by the accused. They have also deposed about robbing of the gold ornaments by the accused. It is no doubt true that certain answers given by these two witnesses in their cross-examination may be the basis for the defence to contend that they are not the actual eye witnesses. Even if the evidence of PWs. 2 and 3 is eschewed from consideration fully, the evidence of PW. 1, which has remained unimpeached, is sufficient to prove the case of the prosecution relating to assault and robbery by all the accused. The presence of PW. 1 on the spot cannot be disputed. She has withstood in her cross-examination fully. Her evidence inspires confidence of the Court fully. We do not find any reason to disbelieve the version of injured PW. 1.

Case of the prosecution is further supported by the evidence of the witnesses for recovery mahazars at Exs. P7, P8, P9, P11 and P14. PWs. 10, 11, 12 and 15 are the witnesses for recovery of the gold ornaments (MO. Nos. 6 to 12). All these witnesses have supported the case of the prosecution fully.

PW. 10 has deposed that accused No. 3 led the police and panchas to the place where he had hidden the gold ornaments which were allotted to his share after the incident among the accused. MO. No. 6-gold chain is recovered at the instance of accused No. 3 under mahazar at Ex. P7. It is clearly deposed by PW. 10 that accused Nos. 1 and 3 led the police and panchas voluntarily to the place where they had hidden the gold ornaments. PW. 10 is one of the witnesses for the said mahazars. Accused Nos. 1 and 3 are arrested on 14.9.2005 and recovery of the gold ornaments is effected on 15.9.2005. It is also deposed by PW. 10 that the ornaments so seized were got checked by the police from the goldsmith immediately after their seizure and having got confirmed that the said ornaments are gold ornaments, the police packed them and sealed under the said mahazars. In the cross-examination, PW. 10 has deposed that mahazar was drawn at the place of recovery and not in the Police Station. Despite searching cross-examination, the defence was not able to get any admission from him in favour of the defence.

PW. 11 is another witness for recovery mahazars at Exs. P9 and P10 under which the recoveries are effected at the behest of accused Nos. 3 to 5. He has deposed that accused Nos. 3 to 5 took the police and panchas to Shimoga in a van by telling the police that they would show the place where they had hidden the robbed gold ornaments. Accordingly, the police and panchas, including PW. 11 went to Shimoga in a van and recovered the gold ornaments and certain amount of cash at the instance of accused No. 4 under mahazar Ex. P9. So also, they recovered one gold bracelet and a ring at the instance of accused No. 5 under mahazar Ex. P10. Such recovery is effected on 17.9.2005. It is relevant to note that accused Nos. 4 and 5 are arrested on 16.9.2005 and immediately on the next day, the recoveries are effected. The recoveries are made from the house of accused Nos. 4 and 5 situated at Shimoga. It is needless to observe that the incident has taken place at Channarayapatna, which means that accused Nos. 3 to 5 came all the way from Shimoga to Channarayapatna which is 100 kms. away and committed dacoity and murder. Even in the cross-examination, PW. 10 has reiterated about the recovery made by the police as mentioned supra.

PW. 15 who is the witness for recovery of gold chain-MO. No. 10 at the instance of accused No. 2 under mahazar at Ex. P14. Accused No. 2 came to be arrested on 3.12.2005. He was wearing the said gold chain at the time of his arrest. The gold chain is recovered from him under panchanama at Ex. P14 to which PW. 15 is the witness. PW. 15 has meticulously deposed about the recovery of gold chain-MO. No. 10 from the person of accused No. 2. He has denied the suggestion in the cross-examination that no such recovery is effected.

On going through the evidence of PWs. 10, 11 and 15, it is clear that they have fully supported the case of the prosecution. No contradictions are elicited and no exaggeration is found in their evidence. Not even an omission is pointed to these witnesses by the defence. The evidence of these witnesses fully supported the case of the prosecution relating to recovery of gold ornaments robbed by accused Nos. 1 to 5. As aforementioned, the gold ornaments are identified by PW. 1, the owner of the said gold ornaments.

It is the case of the prosecution that recovery of gold ornaments is further supported by PWs. 17 and 20. PW. 17 is the owner of Anand Jewellery and PW. 20 is the owner of Sriram Jewelleries. Both these witnesses have purchased certain gold ornaments from accused Nos. 3 to 5. PW. 17 has deposed that he purchased MO. No. 6 from accused Nos. 3 to 5. The same came to be seized under panchanama at Ex. P17. He admits in the cross-examination that he did not hand over the concerned records to the police at the time of recovery, inasmuch as the police did not ask any documents from him. He has denied the suggestions that accused Nos. 3 to 5 did not sell the gold ornaments to him and that accused Nos. 3 to 5 did not bring the police to his shop on that day at the time of recovery.

The evidence of PW. 20 is on par with the evidence of PW. 17. PW. 20 has purchased MO. Nos. 6, 8 and 9 from accused Nos. 3 to 5 which are seized from his shop under mahazar at Ex. P20. His evidence also remained uncontroverted. Except making few suggestions, the defence was not able to shake his evidence. PW. 20, in the examination-in-chief, has fairly deposed that one of the original gold ornaments was converted by him by melting the same. However, new gold ornament came to be prepared within 2 to 3 days.

The evidence of the aforementioned witnesses clearly discloses that the accused after committing dacoity in the house of PW. 1 shared the gold ornaments (booty) among them. Accused Nos. 3 to 5 had sold certain of the gold ornaments in the shops of PWs. 17 and 20. However, certain other gold ornaments were kept by the accused for themselves and were hiding them and the same are recovered at their instance.

In so far as recovery of the weapons is concerned, we also find that the prosecution has produced ample material to show the recovery of weapons used for commission of offence by the accused. PWs. 12, 13 and 14 are the witnesses for mahazars at Exs. P11 and P12 under which MO. Nos. 29, 30, 15 and 16 are recovered.

PW. 12 is the witness for recovery mahazar at Ex. P11. The same is drawn on 14.9.2005. The chopper-MO. No. 29 is recovered at the instance of accused No. 1, whereas knife-MO. No. 30 is recovered at the instance of accused No. 3 under the said mahazar on 14.9.2005. As mentioned supra, accused Nos. 1 and 3 are arrested on 14.9.2005. Thus, immediately after their arrest, the recovery is effected based on their voluntary statements. PW. 12 has emphatically deposed supporting the case of the prosecution that accused Nos. 1 and 3 volunteered to produce the weapons used by them for commission of offence in case if the police and panchas come along with them. Accordingly, accused Nos. 1 and 3 led the police and panchas (mahazar witnesses) to a bush near the house of PWs. 1 and 6, where the weapons were hidden. At the first instance, accused No. 1 took out a chopper from the bush which was blood stained. Accused No. 3 led the police and mahazar witnesses to a place situated 15 feet from the place where accused No. 1 took out the chopper. Thereafter, accused No. 3 took out a knife-MO. No. 30 and handed over the same to the police in the presence of panchas. It is also deposed by PW. 12 that knife-MO. No. 30 was also blood stained.

PWs. 13 and 14 are the witnesses for recovery mahazar at Ex. P12 under which MO. Nos. 15 and 16 are recovered at the instance of accused Nos. 4 and 5. PW. 13 has deposed about the recovery at the instance of accused No. 4 only. He did not depose about the recovery at the instance of accused No. 5. However, PW. 14 has deposed about the recovery of MO. Nos. 15 and 16 at the instance of both the accused, i.e., accused Nos. 4 and 5. PWs. 13 and 14 have deposed that accused No. 4 led the police and mahazar witnesses with a view to show the place where he had hidden the chopper and thereafter he took out a chopper from the bush which came to be seized under panchanama at Ex. P12. As aforementioned, though PW. 13 did not depose in respect of the recovery of weapons at the instance of accused No. 5 he has deposed against accused No. 4. However, PW. 14 has deposed that accused No. 5 led the police and panchas to a particular place and showed the chopper-MO. No. 16 which was hidden under the bush. MO. Nos. 15 and 16 are seized under Ex. P12.

Though PWs. 12, 13 and 14 are cross-examined at length, their evidence could not be shaken by the defence. They are the independent witnesses. We do not find any reason to suspect the evidence of these witnesses. Their evidence fully supports the case of the prosecution. Thus, in our considered opinion, it needs to be held that the recovery of weapons is also proved by the prosecution beyond reasonable doubt.

We have already narrated supra as to how and under what circumstances, the complaint at Ex. P1 came to be lodged by the injured PW. 1. She had sustained grievous injuries on her head. The medical records disclose that she suffered from compound fracture of parietal bone. She was also under utter shock by seeing the dead body of Meharunnissa in her house. The complaint at Ex. P1 came to be lodged within 21/2 hours after the incident in question. Therefore, there is every likelihood of missing of some of the factors in the complaint. But it is emphatically stated by the complainant-PW. 1 in the complaint at Ex. P1 that four persons entered her house and assaulted her as well as Meharunnissa. It is also stated in her evidence that one person came on the motor cycle with accused No. 1.

Looking to the totality of the facts and circumstances of the case, in our considered opinion, the trial Court is justified in concluding that the prosecution has proved its case beyond reasonable doubt as against all the accused. Even on reconsideration of the material on record, we do not find any ground to disagree with the findings and the conclusion arrived at by the trial Court.

We heard the advocates on record with regard to imposition of sentence.

Sri Hasmath Pasha, learned advocate appearing on behalf of accused No. 1 submitted that accused No. 1 may be shown leniency while imposing the sentence if he is convicted for the offence punishable under Section 396 of IPC. He further submitted that there is no rigid rule that if the accused is convicted for the offence punishable under Section 396 of IPC, he should be sentenced to undergo life imprisonment. According to him, accused No. 1 has completed B.Com Degree while undergoing imprisonment; he is now aged about 30 years and he has improved fully and therefore he may be allowed with a chance to lead peaceful life in the society with freedom as a law abiding citizen.

Learned counsel appearing on behalf of accused No. 2 also made similar submissions that accused No. 2 has also completed his Degree Course and he also wants to lead a decent life in the society in future.

The said submissions are opposed by Sri Keshava Murthy, learned Additional SPP contending that accused No. 1 has taken advantage of innocence and faith of PW. 1 and misused the friendship of his family with the family of PW. 1; he has taken the help of accused Nos. 2 to 5 for committing dacoity as well as murder; since, he is the brain behind the incident in question and as he has actively participated in the crime with all the accused including accused No. 2, he cannot be shown leniency. So also accused No. 2 has actively participated in the crime, as mentioned supra.

We have already expressed in the aforementioned paragraphs that accused No. 1 was known to the family of PW. 1. He came to the house of PW. 1 on the pretext of asking for curds. On seeing the face of accused No. 1 and on hearing his voice that he needs curds (heppu), PW. 1 opened the door without having an iota of suspicion in her mind and went inside the house for bringing the buttermilk. Accused No. 1 by taking the assistance of accused Nos. 3, 4 and 5 as well as accused No. 2, committed the offence of dacoity coupled with murder in the house of PW. 1. Because of the well designed act of accused Nos. 1 and 2, an innocent maid servant Meharunnissa working in the house of PW. 1, lost her life. In the incident in question, accused not only committed murder and assaulted PW. 1, but also robbed her gold ornaments. PW. 1 sustained grievous injuries on her head and she had to get treatment in a major hospital like Manipal Hospital, Bangalore. She has deposed in her evidence that she is still gets giddiness and that, a portion of her body is practically paralyzed. Therefore, it is clear that PW. 1 being the injured and disabled, has to suffer throughout her life. She cannot forget the incident of murder which occurred in front of her eyes in her own house. Consequently, PW. 6 the husband of PW. 1 will have to suffer throughout his life. Since it is well designed act of accused No. 1 by taking the assistance of accused Nos. 2 to 5 for committing the murder of an innocent lady and assaulting another innocent lady in the process of committing dacoity, no leniency can be shown to any of the accused while imposing sentence. It is a case of murder during the course of dacoity. The accused have not only committed dacoity, but also have committed the murder. The offence is very much heinous in nature.

In the case of Rafiq Ahmed @ Rafi Vs. State of U.P., AIR 2011 SC 3114 : (2011) CriLJ 4399 : (2012) 1 JCC 108 : (2011) 9 JT 279 : (2011) 4 RCR(Criminal) 389 : (2011) 8 SCALE 272 : (2011) 8 SCC 300 : (2011) 11 SCR 907 , while deciding a case in which the accused were charged for the offences punishable under Sections 396 and 302 of IPC after considering the various judgments, the Apex Court on the point has concluded thus:-

"33. On the conjoint reading of Sections 396 and 302 IPC, it is clear that the offence of murder has been lifted and incorporated in the provisions of Section 396 IPC. In other words, the offence of murder punishable under Section 302 and as defined under Section 300 will have to be read into the provisions of offences stated under Section 396 IPC. In other words, where a provision is physically lifted and made part of another provision, it shall fall within the ambit and scope of principle akin to ''legislation by incorporation'' which normally is applied between an existing statute and a newly enacted law. The expression ''murder'' appearing in Section 396 would have to take necessarily in its ambit and scope the ingredients of Section 300 of the IPC. In our opinion, there is no scope for any ambiguity. The provisions are clear and admit no scope for application of any other principle of interpretation except the ''golden rule of construction'', i.e., to read the statutory language grammatically and terminologically in the ordinary and primary sense which it appears in its context without omission or addition. These provisions read collectively, put the matter beyond ambiguity that the offence of murder, is by specific language, included in the offences under Section 396. It will have the same connotation, meaning and ingredients as are contemplated under the provisions of Section 302 IPC."

It is also observed in the aforesaid judgment that the ingredients of Section 302 of IPC become an integral part of the offence punishable under Section 396 of IPC. The offence punishable under Section 396 of IPC was no less heinous than an offence punishable under Section 302 of IPC though in the later case, it was obligatory on the part of the Court to record reasons for not awarding death sentence.

Be that as it may, since it is a case of murder coupled with dacoity, the provisions of Section 396 of IPC shall be applicable. For the reasons mentioned supra, we do not find any ground to reduce the sentence. We are of the clear opinion that the sentence of life imprisonment as imposed by the trial Court after convicting the accused is just and proper under the facts and circumstances of the case.

Hence, no interference is called for. Accordingly, appeals fail and the same stand dismissed.

We place on record the valuable assistance rendered by Sri Sampangiramaiah, learned amicus curiae appearing on behalf of accused No. 2. Registry is directed to pay a sum of Rs. 10,000/- (Rupees ten thousand only) to the learned amicus curiae, as honorarium.