Shivakumar @ Shivanna vs State of Karnataka

Hon''ble Dr. Justice K. Bhakthavatsala

The appellants/accused are in appeal challenging the judgment and order dated 21.2.2008 passed in S.C. No. 59/07 by the I Addl. Sessions Judge and Presiding Officer, FTC-II, Tumkur, convicting them for the offences punishable under Sections 302 r/w. 34 of IPC, 392 r/w 34 of IPC and sentencing them to undergo imprisonment for life, 10 years R.I. and to pay fine of Rs. 10,000/- each on each of the said two counts I.D. to undergo S.I. for two months respectively for the aforementioned offences. The brief facts of the case are :-

The appellants/accused came to be tried by the trial Judge on the charge for the offences punishable under Sections 392 r/w.34 of IPC, 302 r/w.34 of IPC and 201 r/w.34 of IPC on the allegation that on 3.7.2006 at about 10.00 p.m. when the deceased Ambarish was coming from Bangalore in a bus with cash, they took him on a motor cycle from Kibbanahalli cross to S. No. 12/P2P of Chowdlapura situated in Konanakavalu forest area and there after relieving the cash which the deceased was carrying assaulted him with lethal weapons, committed his murder and thereafter, in order to cause disappearance of the evidence of murder to screen themselves from legal punishment, threw the bare body of the deceased into the rain water harvesting ditch near the said place and thereby they have committed the aforementioned offences.

2.1. It is the case of the prosecution that the deceased Ambarish is the son of PW1. He was working as a Writer and Collector in Vasavi Trade Lines dealing in Copra belonging to PW7 situated at Arasikere. The deceased was attending to collection of DDs and also, bank transactions on behalf of PW7. Apart from the same, he was also collecting money due to the firm as directed by PW7.

2.2. It is the case of the prosecution the accused were closely acquainted with the deceased and were cordial with each other. They were residing in the neighborhood of PW1 and the deceased. Accused No. 1 was undertaking repair works of T.V. and accused No. 2 was carrying on the same avocation as that of the deceased.

2.3. It is further the case of the prosecution that PW7 through his firm Vasavi Trade Lines had sold copra valued at Rs. 3,97,000/- to one Rajesh Kumar of Varanasi. The said copra had been sent to him on 21.6.2006 under a bill. The said Rajesh Kumar was due to him of the said amount. Accordingly, the said Rajesh Kumar had addressed a letter to PW7 stating that he could collect an amount of Rs. 4,00,000/- from PW37 Devichand of Bangalore. The said Rajesh Kumar had also addressed a letter to PW37 to pay the said amount to PW7 and a copy of the said letter had been marked to him which is at Ex.P15.

2.4. In response to the same, on 3.7.2006 PW7 deputed the deceased to Bangalore to collect the amount of Rs. 4,00,000/- from PW37-Devichand, as indicated in the letter of Rajesh Kumar by addressing a letter to PW37 as per Ex.P16. Accordingly, the deceased came to Bangalore on that day and collected the amount of Rs. 4,00,000/- from PW37 at about 6.00 p.m. and informed the same on phone to PW7 that he has collected the amount from PW37 and he is returning to Arasikere. In response to the same, PW7 told the deceased that out of the said amount to pay Rs. 2,00,000/- to his brother at Tiptur and to bring the balance of Rs. 2,00,000/-.

2.5. It is further the case of the prosecution thereafter the deceased left Bangalore in a bus to reach Arasikere via Tiptur. On the way, it is the case of the prosecution, that when the deceased came to Kibbanahalli cross in the bus, he alighted from the same. At the said place he saw PW19 who had come in another bus from Bangalore after seeing his daughter, talked to him and thereafter, PW19 boarded the bus in which he had come to proceed to Arasikere. At that juncture it is the case of the prosecution, PW19 saw the deceased being taken by these two accused in a motor cycle with a hand bag in his hands towards Tiptur.

2.6. It is further the case of the prosecution the accused after taking the deceased on their motor cycle from Kibbanahalli cross took him to S.No. 12/P2P of Chowdalapura situated in Konanakavalu Forest Area, there after relieving the deceased of the cash which was with him committed his murder by slitting his throat with a knife, thereafter threw the dead body into a rain water harvesting ditch at the said place and made good their escape from the said place and at about 11.00 p.m. came on their motor cycle near the house of A1 and at that juncture, PW18 who was coming from the market made enquiries with them to which they stated in a perturbed mood that they had gone somewhere and are returning and at that time A2 Was holding a black bag with him. As the deceased was murdered he did not either go to Tiptur and paid cash of Rs. 2 lakhs to the brother of PW7 or reached Arasikere on that night with the balance cash of Rs. 2 lakhs.

2.7. It is further the case of the prosecution that on the morning of 4.7.2006, PW7 contacted his brother residing at Tiptur on phone and enquired whether deceased had come and paid money. In response to the same, his brother replied him in the negative. Thereafter, PW7 went to the house of PW1 to make enquiries about the deceased. On going to the house of PW1 he made enquiries whether the deceased had returned to the house, to which PW1 replied that the deceased had not come till such time. The deceased having gone to Bangalore as per the directions of PW7 was also known to PW1. Thereafter, both PW1 and PW7 went in search of the deceased to the house of PW4 who is their relative. On enquiry PW4 replied them stating that the deceased has not come to his house and to file a complaint to the police. Thereafter, they searched for the deceased, but he was not traced.

2.8. It is further the case of the prosecution that on the morning of 5.7.2006 at about 11.00 a.m. PW3 was returning from Tiptur to his place Jajoor on his motor cycle. He noticed people having gathered near rain water harvesting ditch situated in Konanakavalu forest area. He proceeded to the said place. There he noticed a dead body floating in the water. Thereafter, he proceeded to Tiptur rural police station and filed complaint as per Ex.P2 before PW22-PSI. PW22 on receipt of Ex.P2 registered a case in Crime No. 110/2006 for the offences u/ss.302, 201 of IPC against unknown persons initially and issued FIR as per Ex.P33 to the Jurisdictional Magistrate. Thereafter, he handed over further investigation of the case to PW36-C.P.I/I.O. PW36 on taking over the investigation proceeded to the spot of occurrence and there he drew up the spot panchanama as per Ex.P4 in the presence of PW24 and PW25. At that time, he also got the photographs of the deceased taken and prepared a rough sketch as per Ex.P44. At the time of Ex.P4 he also seized MOs 1 to 19 which comprised of a pant, yellow shirt and a knife. Thereafter, he held inquest over the body of the deceased and drew up the inquest panchanama as per Ex.P3 in the presence of panchas PW38 and others. After completing Ex.P3, he sent a requisition to the medical officer PW32 to come to the spot and conduct post mortem examination. In response to the same, PW32 came to the spot, conducted autopsy over the body of the deceased and issued the post mortem report as per Ex.P38 under which he opined that the death is due to shock and hemorrhage as a result of injury to the neck. After the post mortem examination since the body was unknown, he got the same buried near the said place. Thereafter, he took steps to get publicised photo of unidentified body in newspaper. The same was published on 6.7.2006.

2.9. It is further the case of the prosecution that PWs 1 and 4 on reading the said paper publication came to Tiptur rural police station and there after seeing the photographs of the deceased, and MOs 1 to 8 which had been seized by PW36 identified the same as that of the deceased. PW36 recorded their statements. Thereafter, PW36 gave a requisition to the Sub Divisional Magistrate for exhuming the body, in response to which the Sub Divisional Magistrate, Tiptur authorised PW26 the Taluka Executive Magistrate to get the body exhumed. In response to the same, the body was exhumed and on being identified by PW1 & PW4 it was handed over to PW1 and his relatives who in turn took the same to their place and completed the final rites.

2.10. PW36 in the meantime also took steps to get the sketch of the scene of occurrence prepared through PW13, in response to which PW13 prepared the sketch as per Ex.P27. Further PWs 36 and 26 got the surveyor PW14 to the spot of occurrence and there after getting the spot surveyed, got prepared the sketch through him as per Ex.P28.

2.11. Thereafter, PW36 continuing the investigation got the call details of the deceased mobile. He also recorded the statement of PW7 and also PW37. Thereafter, he deputed his staff to trace the accused, whom he suspected. In response to the same, PW29-head constable on 19.7.2006 apprehended both the accused near Arasikere Railway station and produced him before PW36. PW36 arrested both the accused and on their interrogation he recorded their voluntary statement as per Exs.P45 and 46. Thereafter, he secured the panchas PWs 10, 12, 28 and departmental Videographer-PW21. Thereafter, PW36 recovered cash of Rs. 1,80,000/- under the panchanama Ex.P23 at the instance of accused No. 1 pursuant to his statement Ex.P45. Apart from the same, he also seized MOs 15-knife, 16-mobile set and motor cycle-MO17. After completing Ex.23, he also seized a sum of Rs. 1,70,000/- at the instance of accused No. 2 pursuant to his statement Ex.P46 under panchanama Ex.P24 and also a black bag MO 18 in the presence of the aforesaid panchas. The recovery of the amount made at the instance of Accused 1 and 2 was also got videographed through PW21. After completion of Exs.P23 & P24, PW36 got the accused remanded to judicial custody on completion of their arrest formalities. Thereafter, PW36 continuing the investigation forwarded the seized articles to FSL Office, secured the relevant documents like the sketch, FSL report, photographs, recorded the statement of the witnesses including the police officials and thereafter on completion of the investigation he submitted a final report against the accused for the offences punishable under Sections 302, 392, 201 r/w.34of IPC before the jurisdictional Magistrate. The Learned Magistrate in turn committed their case to the court of sessions. The court of sessions on receipt of the records, secured the presence of the accused and on hearing, framed charge against the accused for the offences punishable under Sections 392 r/w.34, 302 r/w.34 and 201 r/w.34 of IPC to which the accused pleaded not guilty, but claimed to be tried.

The prosecution in support of its case in all examined PWs 1 to 38, got marked exhibits P1 to P48 and MOs 1 to 19. The accused have not got marked any defence exhibits during the course of examination of the prosecution witnesses.

After the closure of prosecution evidence the accused were examined u/s.313 Cr.P.C. They have denied all the incriminating circumstances that have been put to them found in the evidence of the prosecution witnesses. Thereafter, they were called upon to enter on their defence and lead any defence evidence if any, for which they have stated that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.

Thereafter, the learned Trial Judge on hearing the learned Public Prosecutor for the State and the learned counsel for the accused and on going through the evidence and the documents on record came to the conclusion that the prosecution has failed to establish the charge u/s.201 r/w.34 of IPC, but on the other hand, it has established the charges u/s.302 r/w.34 of IPC and 392 r/w.34 of IPC and accordingly, by his judgment and order dated 21.2.2008 convicted the accused for the said offences and sentenced them to undergo imprisonment for life, 10 years R.I. and to pay fine of Rs. 10,000/ each on each of the said two counts I.D. to undergo S.I. for two months respectively for the aforementioned offences.

It is the correctness and legality of the said judgment of conviction and order of sentence that has been assailed by the appellants in this appeal.

The learned counsel for the appellants contended that the impugned judgment and order convicting the accused cannot be sustained as there is no clinching and cogent evidence let in by the prosecution to establish the guilt of the accused. Elaborating his submission he submitted that there are no eye-witnesses to the occurrence. The entire case of the prosecution rests on circumstantial evidence and the circumstances relied upon do not form a complete chain of link to bring home the guilt to the accused. The evidence of the prosecution witnesses relied upon is untrustworthy and does not inspire any confidence to place reliance on their testimonies. Further, the recovery i.e. alleged to have been made at the instance of the accused is not proved in accordance with law and despite the same, the learned trial Judge without properly appreciating material on record in its right perspective has come to a wrong conclusion that the prosecution has established the charge levelled against the accused which cannot be sustained. Therefore, it be set aside by allowing the appeal.

Per contra, the learned Addl. SPP for the State supporting the impugned judgment and order passed by the learned Sessions Judge contended that the evidence of the prosecution witnesses pressed into service more particularly that of PWs.1, 2, 3, 4, 6, 7, 10, 12, 18, 19, 22, 36 and 37 reveal that the accused is responsible not only for the murder of the deceased, but also for relieving the cash and as circumstances relied upon by the prosecution through these witnesses have been established by placing clinching evidence on record and as nothing has been brought about in the cross examination of the witnesses to discard the same, the impugned judgment and order passed by the learned trial Judge does not call for any interference and accordingly, the appeal be dismissed.

Taking the rival contentions, the evidence and the documents on record, the points that arise for our consideration are :-

i) Whether the prosecution has established that the deceased Ambarisha has died an homicidal death?

ii) If so, whether the prosecution has established that the accused are responsible for the homicidal death of the deceased and have relieved the deceased of the cash which was on his person?

iii) Whether the impugned judgment and order of conviction and sentence calls for interference?

iv) What order ?

Re.Point No. 1;

The prosecution in order to establish that the deceased Ambarish has died an homicidal death have relied upon the evidence of PW32, the medical officer who has conducted autopsy over the body of the deceased. The evidence of PW32 medical officer reveals, on 5.7.2006 on the request of the investigating officer-PW36 he conducted post mortem examination over the body of the deceased near the spot of occurrence i.e. in S.NO. 12/P2P of Chowdalapura situated in Konanakavalu forest area. His evidence reveals that he noticed a cut injury measuring about 9 inches x 3 inches x 4 inches on the neck which has resulted in cutting of all the blood vessels, thyroid cartilage and hyoid bone. There was one more injury below the said injury measuring 3 inches x 1/2 inch x 1/2 inch. Apart from the same, there were other injuries on the other parts of the body. He has opined that the death is due to shock as a result of injury to the neck and he has issued post mortem report as per Ex.P.38. He has also stated that the death might have occurred 24 to 36 hours prior to his conducting post mortem examination. In the cross examination of this medical officer we find nothing has been elicited to discard his testimony as to the cause of death of the deceased due to the neck injury. Further, this evidence of the medical officer is fortified from the evidence of PW36 the investigating officer and PW38 the inquest pancha. The evidence of PW38 reveals on 5.7.2006 the police held inquest over the body of the deceased and drew up the inquest panchanama as per Ex.P3. This evidence is further fortified from the evidence of PW36 the investigating officer who has drawn up the inquest panchanama. Their evidence reveals they noticed the injuries on the body of the deceased as found by the medical officer. This was at an undisputed point of time. In the cross-examination of these witnesses also nothing has been brought about to discard their testimony. Apart from this the evidence of PWs 34 and 35 reveals that on the directions of PW36-investigating officer they removed the body from the ditch. They have been treated as hostile. The fact of body having been removed from the ditch and it having injuries as spoken to by PWs 36 and 38 is not seriously disputed. Further, the prosecution has relied on the evidence of PW3, who has filed the complaint Ex.P2 who has stated in his evidence that he noticed the body in the ditch and thereafter, he filed the complaint Ex.P2. His evidence further reveals the police also seized the articles that were found on the body of the deceased and also a pant, yellow shirt with black stripes and knife which were at the spot. In our view, this evidence further fortifies that the body was found at the spot with injuries and floating in the water. Apart from this to connect the body as that of the deceased, the prosecution has relied upon the evidence of PW1-father of the deceased, PW4 - a relative of the deceased. Their evidence reveals that on 6.7.2006 on seeing the photographs Ex.P1 (a,b,c) and the articles that had been seized by the police found on the body of the deceased at the time of Ex.P4 drawn up at the spot, on 5.7.2006 which are at MOs 1 to 11, they identified the body as that of the deceased. Apart from this, we have also the evidence of PW36 disclosing that the body of the deceased was got exhumed in the presence of PW26 Taluka Executive Magistrate. At the time of exhumation of the body Ex.P26 was drawn up, PW11 is the pancha for Ex.P26. His evidence reveals the Taluka Executive Magistrate and the police got exhumed the body which had been buried near the spot of occurrence and the intestine had come out and the same was taken in a gunny bag. At that time PW1, PW3 and PW4 were present and they identified the same as that of the deceased. Insofar as the identification of the body of the deceased by PWs 1, 3 & 4 is consistent. They have identified on the basis of MOs 1 to 11 and photographs of the deceased that were shown to them in the police station. Apart from the same, they have also identified the body as that of the deceased after it was got exhumed by PW26-Taluka Executive Magistrate. In the cross-examination of these witnesses also we find nothing having been brought on record to discredit their testimonies. On the other hand their evidence inspires in us to hold that the body that was found in the rain water harvesting ditch at the spot of occurrence was that of the deceased. In that view of the matter, in view of the evidence of PWs 32 - medical officer, 36-Investigating officer, 38-inquest panch and the evidence of PW1, 3 and 4, in the circumstances, we have no hesitation to hold that the deceased-Ambarisha has died an homicidal death and the prosecution has established the same.

Re. Point No. 2 :

The prosecution in order to establish that the accused are responsible for the homicidal death of the deceased and they have relieved the deceased of the cash which was on his person have relied upon circumstantial evidence. The circumstances that have been relied upon are :-

1) The accused and the deceased having been seen moving together at Arasikere town;

2) The accused having been seen at Tiptur and later at K.B.Cross on 3.7.2006 at about 8.30 p.m. and 9.30 p.m;

3) The deceased having been seen in the company of the accused for the last occasion on the night of the occurrence at K.B. Cross.

4) The accused having been seen at about 11.00 p.m. on 3.7.2006 coming on a motor cycle holding a bag and entering the house of A1?

5) Extra judicial confession made by the accused to PW2.

6) Recovery of the cash of Rs. 3,50,000/- and the knife M015 and the black bag - MO18 at the instance of the accused.

It is well settled that in a case which rests on circumstantial evidence, the prosecution in order to bring home the guilt to the accused have got to establish all the links in the chain of circumstances that they rely upon. It any one of the link in the chain of circumstances is not established that goes against the prosecution. Bearing this in mind we propose to deal with each of the circumstances that have been pressed into service by the prosecution.

The accused and the deceased having been seen moving together at Arasikere town;

It is the case of the prosecution that the deceased was working as a writer and collector in Vasavi Trade Lines which deals in Copra belonging to PW7. The accused and the deceased were acquainted with each other and they were on cordial terms. They were moving together in Arasikere town. In order to establish this the prosecution has relied upon the evidence of PWs 5, 6 and 9. We may straight away mention that all these witnesses on whom prosecution has relied have turned hostile. They have stated that they have not seen the accused and the deceased moving together. Therefore, this first link in the chain of circumstance is delinked.

The accused having been seen at Tiptur and later at K.B.Cross on 3.7.2006 at about 8.30 p.m. and 9.30 p.m.

The prosecution in order to establish this have relied upon the evidence of PWs 17, 23 and 27. According to the prosecution the accused made a call from the STD Booth maintained in the shop of PW17 at Tiptur on 3.7.2006 after taking change for Rs. 5. PW17 though admits that he has a coin booth installed in his studio, has stated in his evidence that he has not seen the accused prior to the dote of examination in the court and they having made any phone call from his coin booth. He has been treated as hostile. Since in his evidence he has come out specifically stating that he has seen the accused for the first time before the court on the date of his examination i.e. on 19.11.2007, his evidence relied upon by the prosecution that he having seen the accused at Tiptur on 3.7.2006 will have no bearing to the prosecution case.

Further according to the prosecution PW27 owns an STD Booth at K.B.cross. On 3.7.2006 the accused had come to his STD booth and had made a call from his STD Booth bearing No. 262380. This witness has given a go-by to the prosecution case and has stated that he does not know whether the accused had made any call from his booth or not and he also does not know the reason for the death of the deceased. As he has also turned hostile to the prosecution and as he has stated that he does not know whether the accused had made any phone calls from STD booth on the night of 3.7.2006 at K.B.cross, his evidence also is of no avail to the prosecution.

Apart from this, the prosecution has relied upon the evidence of PW23. It is the case of the prosecution that on 3.7.2006 in between 9.00 and 9.30 p.m. the accused had gone to Karthik bar situated at K.B.cross and had taken drinks and the same had been supplied by PW23. PW23 in his evidence has stated that the police had brought the accused near the bar at K.B.cross and had made enquiries whether they had come to the bar and had taken drinks in their Bar on the night of 3.7.2006, to which he replied that since many people come to his bar, he does not know whether the accused had come or not and he has not given any statement to that effect before the police. His evidence therefore goes to show that the accused having gone to Karthik Bar at K.B. cross and had taken drinks also falls to the ground and in view of PW23 also having turned hostile, his evidence is also of no avail to the prosecution pointing towards the guilt of the accused.

The deceased having been seen in the company of the accused for the last occasion on the night of the occurrence at K.B.cross.

The prosecution in order to establish that the deceased was seen for the last occasion in the company of the accused near Kibbanahalli cross have relied upon the testimony of PW19.

As already stated it is the case of the prosecution that the deceased Ambarish on 3.7.2006 after collecting money from PW37 at Bangalore took a bus to return to Arasikere. He was seen going in the company of the accused on a motor cycle towards Tiptur from K.B.cross. PW19 in his evidence claims that on 3.7.2006 he had been to Bangalore in order to see his daughter who was studying. After calling his daughter at Bangalore he was returning to his place-Jajoor in Arasikere Taluk in a bus. He had got down from his bus near Mayura hotel to have his food. At that time, the deceased, travelling in the bus following his bus, came and talked (spoke) to him. Thereafter, he boarded his bus after taking the food. After boarding the bus he saw the accused taking the deceased in a motor cycle towards Tiptur. The deceased was seated in the middle. Accused No. 2 was riding the motor cycle and accused No. 1 was sitting behind the deceased. The deceased was wearing a yellow shirt and was holding the bag-MO18. In the cross examination it is brought out that he came out with the version of seeing the deceased going in the company of the accused on the motor cycle before the police on 21.7.2006 nearly about 18 days after the occurrence. It has also come in the cross-examination within 3 to 4 days he had informed of what he had seen to PW1 who is the father of the deceased in Arasikere market. This theory of he having seen the accused on the night of 3.7.2006 has come to light after the accused have come to be arrested on 19.7.2006, whereafter his statement has come to be recorded to this effect. Even otherwise it is very difficult to believe his evidence in view of the fact that after he boarded the bus he saw the deceased going in the company of the accused. Admittedly, it was around 9.30 p.m. or 10.00 p.m. Whether there was light or not to enable this witness to see, there is no evidence. Apart from this, PW19 does not say specifically that he had got down from the bus to have his dinner in Mayura hotel situated at K.B.cross. He has only stated that he had got down to have his food at Mayura Hotel. Whether he had got down to have his food in Mayura hotel situated at K.B.cross, there is no evidence. In view of the fact that he has come out with the version of having seen the deceased 18 days after the occurrence that too after the arrest of the accused, does not inspire any confidence to place reliance on his testimony.

Therefore, we are of the view that this evidence of PW19 is also of no avail to the prosecution.

The accused having been seen at about 11.00 p.m. on 3.7.2006 coming on a motor cycle holding a bag and entering the house of accused No. 1

The prosecution in order establish this circumstance have relied upon the evidence of PW18. PW18 in his evidence has claimed that his house is at a distance of about 100 mtrs from the house of accused at Srinivasnagar in Arasikere. On 3.7.2006 at about 11.00 p.m. the accused came in a motor cycle near the house of accused No. 1. At that time, he was returning from the market and on enquiry they told him that they had gone to some place and are returning and at that time, they were in a perturbed mood and there was a black bag in the hand of accused No. 2. Thereafter, they went inside. Thereafter, PW1 was searching for his deceased son and later he came to know that deceased had been murdered. This witness has also admitted that his statement has been recorded on 21.7.2006 i.e. after the arrest of the accused. In between though he claims that PW1-father of the deceased was searching for his deceased son, he has not come out with the version of he having seen them on the night, on 3.7.2006 going to their house on a motor cycle and on talking to them they were in perturbed mood. It is brought out in the cross examination that he was running a chit of which accused No. 2 was a member and on account of he committing default in making payment, he had been dismembered. In that view of the matter and in view of he having come out with the version at a later point of time, his evidence in our view is also of no avail to the prosecution.

Extra judicial confession made by the accused to PW2

According to the prosecution the accused after committing the offence made an extra judicial confession to that effect before PW2 on 9.7.2006. PW2 in his evidence has claimed that he knows the accused and they hail from Srinivasnagar at Arasikere. On 9.7.2006 in the morning in between 7.00 and 7.30 a.m. the accused came near his house on a motor cycle, parked the same in the courtyard, entered the house and called him inside the room. When they came to his house they were pale. They told him that they have committed murder of the deceased and requested him to save them. In response to that PW2 told them there is no other way except to surrender to the police, to which the accused told him that they had come to him thinking that he would help them, on the other hand as he has negatived their request, threatened him with dire consequences not to reveal the same to any one as otherwise he would meet the same fate as that of the deceased. He had come to know about the deceased having not returned from Bangalore since 4.7.2006, but he has come out in the cross examination that in his statement recorded on 12.7.2006 he has come with the version of accused having made extra judicial confession on 9.7.2006 on which date itself the police had come and taken the accused to the police station.

Extra judicial confession in the very nature of things is a weak piece of evidence. Though he claims that since 4.7.2006 he knew about the deceased missing he has not revealed to any one about the accused making extrajudicial confession on 9.7.2006. This evidence of PW2 who is also closely acquainted with PW1, in our view, does not inspire any confidence to place any reliance on his testimony. Therefore, this circumstance pressed into service in our view also gets delinked from the chain of circumstances.

Recovery of cash of Rs. 3,50,000/- and the knife-MO15 and black bag-MO18 at the instance of the accused.

It is the case of the prosecution that PW7 under whom the deceased was working had sold copra of the value of Rs. 3,97,000/- from his firm-Vasavi Trade Lines at Arasikere to one Rajesh Kumar of Varanasi. He had transported the said copra with bill on 21.6.2006. In response to the same, the said Rajesh Kumar had addressed a letter to him to collect an amount of Rs. 4,00,000/- from PW37 at Bangalore. A copy of the said letter is at Ex.P15. In response to the same he had deputed the deceased to collect the said amount from PW37 on 3.7.2006 along with his letter Ex.P16. Accordingly, the deceased went to the shop of PW37 and collected the said amount of Rs. 4,00,000/- and left Bangalore at about 6 p.m. The said amount of Rs. 4,00,000/- according to the prosecution has been relieved by the accused from the person of the deceased after committing murder and out of the said amount they have recovered a sum of Rs. 3,50,000/- in the ratio of Rs. 1,80,000/- and Rs. 1,70,000/- at the instance of accused Nos. 1 and 2 under the panchanama Exs.P23 and P24 apart from MOs 15 and 18.

The prosecution in order to establish the recovery of the cash, knife-MO15 and the black bag-MO18, in which cash was carried, have relied upon the evidence of PWs 10, 12, 28 & 36 -the investigating officer in this case. Apart from the same, they have also relied upon the evidence of PWs 7 and 37 in this connection. It is in the evidence of PW36 that he arrested the accused on 19.7.2006, interrogated them and recorded their voluntary statement as per Exs. P45 and P46.

Thereafter, he secured the panchas - PWs 10, 12 and 28 and also the departmental photographer-PW21.

Thereafter, it is the case of the prosecution that accused No. 1 led to his house at Sreenivasanagar at Arasikere and produced the cash of Rs. 1,80,000/- knife-MO15 which he seized under the mahazar Ex.P23 in the presence of the aforesaid panchas and one mobile set-MO16 and the motor cycle -MO17 which was inside and near the house respectively. After completion of Ex.P23, accused No. 2 led them to his house and from their he produced cash of Rs. 1,70,000/- and also the bag-MO18 which he seized under mahazar Ex.P24. It is pertinent to note that this recovery according to the prosecution more specifically from the evidence of PW36-the investigating officer, it is pursuant to the information Exs.P45 and 46 of the accused. On a perusal of Exs.P45 and P46, we find that the entire statement has been marked as Exs. P45 and 46. The relevant portion of the statement of the accused relating to the discovery of the fact is not marked specifically in exhibits P45 and P46 and the investigating officer PW36 has also not stated to that effect in his evidence. In order to attract Section 27 of the Indian Evidence Act firstly, the accused should be in the custody of the police, secondly they should give an information leading to the discovery of the fact pursuant to which recovery is to be made.

Further Section 27 lays down that so much of the information that distinctly leads to the discovery of the fact alone is admissible in evidence and it is an exception to Sections 25 and 26 of the Evidence Act. Therefore, so much of information leading to the discovery of the fact must be proved like any other fact and mere evidence of the investigating officer that he recorded a particular statement as per certain record made by him and exhibited cannot take the place of substantive evidence.

In this case all these factors are absent. In that view of the matter the very foundation of the recovery made by PW36 at the instance of the accused in our view has to fall to the ground. Coming to the evidence of the panch witnesses, PW10, 12 and 28 among them PW10 has partly turned Hostile. In the evidence of these witnesses there is nothing to indicate the accused produced the amount from a place of which they had exclusive knowledge. Admittedly, the evidence on record reveals that the inmates of the house were present when the recovery was made. These witnesses claim that the money was recovered on being produced by the accused, but exactly from which place they produced the amount is not forthcoming from their evidence. In view of the fact the information pursuant to which the recovery is made itself is not properly proved, the evidence of these witnesses also does not inspire confidence in us to place reliance on the same. Furthermore, this recovery cannot be believed for the reason PW2 in his evidence in his cross examination has admitted that on 9.7.2006 when the accused made extra judicial confession, the very same day they were taken by the police from his house to the police station. He also filed a complaint before the police. That evidence would go to show that the accused were already in custody of the police on 9.7.2006 much prior to 19.7.2006. What transpired between 9.7.2006 and 19.7.2006 there is no material oh record and in our view much water must have flown under the bridge during this period. Apart from this, PW37 who according to the prosecution paid cash of Rs. 4,00,000/- to the deceased out of which Rs. 3,50,000/- has been recovered, has not identified the cash before the court as the one which he had given to the deceased. Though, no doubt photographs of the amount seized have been taken and placed on record before the court, there is no specific identity of the amount that is alleged to have been seized in this case. None of these panch witnesses adverted to above have stated that the amount was counted at the time of recovery and the number of pieces of various denominations as recorded in the seizure panchnama. As already pointed out, the initiation of the recovery at the instance of the accused pursuant to the information itself is not in accordance with law. In that view of the matter the theory of recovery of the cash at the instance of the accused also does not inspire confidence of this court and this link in the chain of circumstance also is delinked.

Thus, all the links in the chain of circumstances that have been relied upon by the prosecution has not been established by placing cogent and reliable evidence.

Further, the evidence of PW13. PW14, the Junior Engineer and Revenue Surveyor who have prepared the sketch exhibits P27 & P28, PW16, the owner of the motor cycle-MO17, who has sold it to accused No. 1 long back for a sum of Rs. 7,000/-, PW20 an official of the Airtel Company who has furnished the call details, PW30, PW33 -police constables who have collected exhibits P31, P32, P37 and has carried the articles to FSL office and PW31, scribe of the panchanamas exhibits P4, P23 and P24, in our view, are only formal in nature and their evidence is of no consequence in any manner pointing towards the guilt of the accused.

Therefore, we are of the view that the prosecution has failed to establish the charge levelled against the accused.

Re. point No. 3 :

In view of our conclusion arrived at on point No. 2 we are of the view that the learned trial Judge has committed an error in coming to the conclusion that the prosecution has established the charges levelled against the accused which is not based either on facts or justifiable in law, accordingly the impugned judgment and order of conviction and sentence cannot be sustained, liable to be set aside and the accused are entitled for acquittal.

Re.point No. 4:-

In the result for the foregoing reasons we proceed to pass the following order :-

i) The appeal is allowed;

ii) The impugned judgment of conviction and order of sentence passed on the appellants are set aside. The appellants/accused are acquitted of the charges levelled against them. They are in custody. They are ordered to be set at liberty forthwith if not required in any other case.