The Registrar General vs Dandupalya Krishna

K.N. Keshavanarayana, J.—Criminal R.C. No. 6 of 2010 is registered on the basis of the reference made u/s 366 of Criminal Procedure Code, 1973 by XXXIV Additional City Civil and Sessions Judge (Special Judge), Central Prison, Parappana Agrahara, Bangalore, for confirmation of sentence of death dated 30-9-2010 passed in S.C. No. 25 of 2005 against the respondent-accused for the offences punishable under Sections 302 and 394 read with Section 34 of Indian Penal Code, 1860. Criminal Appeal No. 128 of 2011 by accused 1 and Criminal Appeal No. 157 of 2011 by accused 2 and 3 in S.C. No. 25 of 2005 are directed against the judgment of conviction dated 25-9-2010 passed in the said case convicting them for the offences punishable under Sections 302 and 394 read with Section 34 of IPC and order of sentence dated 30-9-2010 sentencing them to death for the said offences. Therefore, both the reference as well as appeals filed by accused 1 to 3 were heard together and are being disposed of by this common judgment.

For the sake of convenience, during the course of the judgment, the appellants in Criminal Appeal Nos. 157 and 128 of 2011 are referred to as accused 1 to 3.

The Circle Inspector, Tumkur Town Police Station, Tumkur, laid charge-sheet against accused 1 to 3 and another arraigned as accused 4 by name Chinnappa, son of Bellappa for the offences punishable under Sections 397, 302 read with Section 34 of IPC inter alia alleging that accused 1 to 4 by sharing common intention of committing robbery, barged into the house of deceased Appannaiah and P.W. 5-Smt. Susheelamma situated at Chickpet Agrahara, Tumkur, between 9.00 and 10.00 p.m. on 18-3-1999 and demanded the deceased Appannaiah to handover the valuables and cash kept in the house and when the said Appannaiah resisted, he was assaulted with a chopper on the back and the neck and on hearing the screaming sounds of her husband, when P.W. 5-Susheelamma came out of the bedroom, she was held by the accused and robbed her of three pairs of bangles, 2 gold chains from her person and gold ornaments kept in the almirah were also robbed and after tying the hands and legs of P.W. 5 and by closing her mouth with adhesive plaster, the accused left the house and as a result of the assault, Appannaiah sustained severe injury and died at the spot.

According to the case of the prosecution, after sometime of the assailants going away from the house, P.W. 5 managed to come out of the house, went near the house of P.W. 1-T.G. Adaveeshappa and P.W. 2-Bharathi, who were the tenants in occupation of a portion of the first floor in the same building and informed them about the incident. P.W. 1 in turn, informed the police as well as P.W. 4-Parshwanatha, the son of the deceased Appannaiah and P.W. 5 about the incident. On receiving information, the police as well as P.W. 4 came near the house, where P.W. 5 lodged a report about the incident, based on which, the police registered the case in Crime No. 52 of 1999 for the offence punishable u/s 394 of IPC against four unknown persons and took up investigation. During investigation, P.W. 18-H.M. Omkaraiah, Circle Inspector, Tumkur Town Police Station, held inquest over the dead body, drew up inquest report as per Ex. P. 2. After the inquest, he conducted spot-mahazar as per Ex. P. 1, whereunder he seized a towel, plaster, a white thread (rope) and a chopper lying at the spot as per M.Os. 1 to 3 and also prepared a rough sketch of the scene of occurrence as per Ex. P. 20 and thereafter, the dead body was subjected to post-mortem examination. P.W. 15-Dr. Siddaiah, who conducted post-mortem examination on the dead body, noticed as many as 8 external injuries on the dead body and opined that the death of the deceased was due to shock as a result of external haemorrhage and submitted report as per Ex. P. 16. On 21-1-2000, P.W. 5 saw the photographs of certain culprits published in ''Sanjevani'' Kannada Daily Newspaper and out of them, she identified two persons namely, accused 1-Dandupalya Krishna and another namely Thimma as the two culprits, who along with two others barged into the house and committed the acts of robbery and murder in the night of 18-3-1999. She along with the said newspaper came to the Investigating Officer and informed them about her identification of two of the culprits. In the first week of March 2000, P.W. 18 came to know about accused 1-Dandupalya Krishna and another, Thimma identified by P.W. -5 remaining in judicial custody in connection with some other case. Therefore, he filed application before the concerned Court for body warrant pursuant to which he secured the presence of accused 1-Dandupalya Krishna and another, Thimma to his custody on 11-4-2000.

During interrogation, accused 1 made voluntary statement about the commission of the offence in the house of P.W. 5. He also volunteered to produce one gold bangle robbed from the house of P.W. 5, which he has kept in his house, if he is taken there. The said voluntary statement of accused 1 was reduced into writing as per Ex. P. 21, pursuant to which accused 1 led P.W. 8-Siddaraju and one Kumar as panchas as well as P.W. 18-Omkaraiah, the Investigating Officer, to his house situated in Dandupalya Village on 12-4-2000, where he produced one gold bangle as per M.O. 5 and the same was seized under mahazar-Ex. P. 10. The interrogation of accused 1 revealed the complicity of accused 2 to 4 in the commission of the offence. It was also revealed that even accused 2 to 4 are in judicial custody in connection with some other case. Therefore, P.W. 18 secured the presence of accused 2 to 4 through body warrant and recorded their voluntary statements. During interrogation, accused 2-Venkataramana alias Venkatarama made voluntary statement as per Ex. P. 22 and accused 3-Munikrishna made voluntary statement as per Ex. P. 23 and accused 4-Chinnappa made voluntary statement as per Ex. P. 24. Pursuant to their voluntary statements, accused 2 led P.W. 11-Krishnamurthy and the Investigating Officer to Tirupathi, where P.W. 7-Gangaram was asked to act as a pancha and in their presence, accused 2 showed one Mahesh alias Munivenkata as the person to whom he had given the robbed ornaments for pledging/sale. The said Mahesh alias Munivenkata admitted the said fact and informed that he through one Jagannathachari (P.W. 10) got the ornaments melted and got prepared new ornaments and those new ornaments have been pledged in Ambika Pawn Brokers, Tirupathi run by P.W. 6-K. Pookraj. Accordingly, the said Mahesh alias Munivenkata took the Investigating Officer and panchas to the shop of P.W. 6-Pookraj, who on admitting the fact of the said Mahesh alias Munivenkata having pledged two gold chains, produced them and also produced the Pawn Receipt No. 3709, dated 16-2-2000. P.W. 18 seized the photostate copy of the pawn receipt as per Ex. P. 7 and the ledger extract as per Ex. P. 8 and also two gold chains as per M.O. 6 under mahazar-Ex. P. 9. The said Mahesh alias Munivenkata also informed the Investigating Officer that some of the ornaments given to him by accused 3 also were got melted through P.W. 10-Jagannathachari and newly prepared ornaments have been pledged with Jagadamba Pawn Brokers, run by P.W. 9-Shamlal. Accordingly, the said Mahesh alias Munivenkata took the Investigating Officer and panchas to the shop of P.W. 9, where P.W. 9 identified the said Mahesh alias Munivenkata and also admitted the factum of the said Mahesh alias Munivenkata pledging two bangles. P.W. 9 produced two bangles as well as Pawn Receipt No. 7812, dated 12-2-2012. P.W. 18 seized the pawn receipt as well as two bangles under mahazar-Ex. P. 11. The two bangles seized are marked as M.O. 4. On the same day, a pair of gold hangings were also recovered from the shop of P.W. 13-Govindalalsharma, which are marked as M.O. 7, which according to said Mahesh alias Munivenkata, were the one prepared out of the ornaments given by accused 4-Chinnappa. M.O. 7 was seized under mahazar-Ex. P. 13. On 29-4-2000 at the instance of accused 4-Chinnappa, a chopper said to have been used in the commission of the offence was seized from the house of accused 4 situated in Dandupalya Village under Ex. P. 12 as per M.O. 8 on 11-5-2000. During investigation, test identification parade was conducted, wherein, P.W. 5 identified the accused as the culprits. The seized ornaments were identified by P.W. 5 and others. On completion of investigation, charge-sheet came to be laid. All the four accused persons remained in judicial custody.

On committal of the case, the accused were produced before the learned Sessions Judge. All the accused pleaded not guilty for the charges levelled against them and claimed to be tried. Before commencing the recording of evidence before the Sessions Court at Tumkur, a Special Court was constituted for trying various cases registered against accused 1-Dandupalya Krishna and associates in different Districts of the State. Accordingly, the case on hand was also transferred to the Special Court sitting at Central Prison, Parappana Agrahara, Bangalore, where, accused have been lodged.

In order to bring home the guilt of the accused for the charges levelled against them, the prosecution examined P.Ws. 1 to 18, relied on documentary evidence-Exs. P. 1 to P. 24 and material objects-M.Os. 1 to 8. During cross-examination of P.W. 5, defence got marked a portion of her statement as Ex. D. 1. During the pendency of trial, accused 4-Chinnappa died on 19-9-2006, as such, the case as against him was closed as abated. During their examination u/s 313 of Cr.P.C. by the learned Sessions Judge, the accused denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. The defence of the accused was one of total denial and that of false implication.

The learned Sessions Judge after hearing both sides and on appreciation of oral as well as documentary evidence, by the judgment under appeal recorded the findings that the prosecution has established the incident of robbery in the house of Appannaiah and P.W. 5, in the night of 18-3-1999 and during the said incident of robbery, Appannaiah was done to death, as such, the death of Appannaiah was homicidal. The learned Sessions Judge further held that the evidence of P.W. 5 the sole eye-witness and other circumstances established by the prosecution has proved beyond reasonable doubt the complicity of accused 1 to 3 for the commission of the aforesaid crimes. In the light of the said finding, the learned Sessions Judge held accused 1 to 3 guilty of the offences punishable under Sections 302, 394 read with Section 34 of IPC and accordingly, convicted them for the said offences.

After hearing both sides, the learned Sessions Judge was of the opinion that the acts committed by the accused are heinous and cold blood murder and since the evidence available on record established that the accused are involved in several similar incidents, the case would fall under the category of rarest of rare cases warranting imposition of sentence of death. Accordingly, the learned Sessions Judge sentenced accused 1 to 3 to death for the aforesaid offences and submitted a reference to this Court u/s 366 of Cr.P.C. for confirmation of the sentence of death.

As noticed supra, accused 1 to 3 have preferred independent appeals questioning the legality and correctness of the judgment of conviction and order of sentence.

We have heard Sri Hashmath Pasha, learned Counsel appearing for accused 1-appellant in Cri. A. No. 128 of 2011 and Sri Dinesh Kumar K. Rao, learned Counsel appearing for accused 2 and 3 in Cri. A. No. 157 of 2011 and Sri H.N. Nilogal, Special Public Prosecutor for the respondent-State.

Sri Hashmath Pasha would submit as under:

The judgment under appeal is highly perverse and illegal inasmuch as even in the absence of any cogent and acceptable evidence, the learned Sessions Judge has held accused 1 to 3 guilty of the charges; that the learned Sessions Judge has failed to appreciate that the evidence of P.W. 5 with regard to the identity of the accused as assailants is not cogent and convincing, therefore, it was highly unsafe to base conviction on the testimony of P.W. 5; that the evidentiary value of test identification parade, in which P.W. 5 stated to have identified the accused has been completely lost in view of the fact that even according to the prosecution, the photographs of the assailants had been published in the newspaper, through which P.W. 5 said to have identified one of the accused. Therefore, no reliance could have been placed on the alleged test identification parade; that having regard to the manner in which the alleged incident said to have occurred as narrated by P.W. 5, it is highly difficult to accept that she was in a position to have a good gaze of the assailants at the time of the incident so as to identify them and therefore, the evidence of P.W. 5 with regard to identification of the accused as assailants could not have been the sole basis; that since the alleged test identification parade has been conducted long after the date of the incident, the said circumstance could not have been a basis for finding the accused guilty of the offences alleged; that the alleged recovery of M.Os. 4, 6 and 7 would not in any way incriminate accused 2 and 3 for the reason that the said recoveries, even as per the prosecution, have been made at the instance of one Mahesh alias Munivenkata, who is neither the accused nor examined as a witness, therefore, the said recovery would not in any way help the prosecution in connecting the accused to the crime alleged against them; that with regard to recovery of M.O. 5 at the instance of accused 1 is concerned and its identification as belonging to P.W. 5 has not been satisfactorily established, therefore, recovery of M.O. 5 would not in any way incriminate accused 1 to the crime alleged; that the recovery of M.Os. 1 to 3 and 8 are all of no significance since they do not in any way incriminate the accused to the crime alleged; that the learned Sessions Judge has committed serious error in holding that the prosecution has proved the guilt of accused 1 to 3 for the offences alleged against them. He further contended that, even the order of sentence passed by the learned Sessions Judge sentencing accused 1 to 3 to death is highly perverse and illegal having regard to the facts and circumstances of the case. According to the learned Counsel, even if this Court were to hold that the accused are guilty of the offences alleged, it is not a case falling under the category of rarest of rare cases warranting imposition of the sentence of death. Therefore, he sought for allowing the appeals by setting aside the judgment of conviction and order of sentence, and for acquittal of accused.

Sri Dinesh Kumar K. Rao, learned Counsel adopted the arguments of Sri Hashmath Pasha.

Sri Nilogal, learned Special Public Prosecutor, sought to justify the judgment of conviction and order of sentence under appeal and contended that the judgment under appeal does not suffer from any perversity or illegality since the learned Sessions Judge on proper appreciation of oral as well as documentary evidence has recorded the finding of guilt against the accused, as such, the said finding being sound and reasonable regard being had to the evidence available on record, there are no grounds to interfere with the said judgment. He further contended that P.W. 5 being the only other inmate of the house, and since the incident occurred between 9.00 and 10.00 p.m. she had all the opportunity to identify the assailants and therefore, her evidence regarding the identify of the accused as the assailants is cogent and consistent and therefore, the learned Sessions Judge is justified in holding that the prosecution has established the complicity of accused 1 to 3 in the commission of the offences alleged. He contended that the prosecution by cogent and acceptable evidence has proved the recovery of the material objects as well as the valuables robbed from the house of P.W. 5 and these circumstances would further establish the complicity of the accused in the commission of the crime alleged and therefore, the judgment of conviction recorded by the learned Sessions Judge does not warrant interference by this Court. He further contended that having regard to the fact that the accused are found having involved in several similar cases, the learned Sessions Judge is justified in sentencing accused 1 to 3 to death, as such, the order of sentence does not call for interference by this Court.

In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for our consideration are:

(i) Whether the learned Sessions Judge is justified in holding that the prosecution has proved the incident of robbery and murder in the house of P.W. 5 during the night of 18-3-1999?

(ii) Whether the learned Sessions Judge is justified in holding that the prosecution has proved the complicity of accused 1 to 3 in the aforesaid crime?

(iii) Whether the learned Sessions judge is justified in holding accused 1 to 3 guilty of the charges levelled against them for the offences punishable under Sections 302 and 394 of IPC?

(iv) Whether the learned Sessions Judge is justified in sentencing accused 1 to 3 to death for the aforesaid offences?

(v) Whether the judgment of conviction and order of sentence passed by the learned Sessions Judge warrants interference by this Court?

Regarding Point No. 1

As noticed supra, the criminal law as to the commission of the offences was set on motion through the report lodged by P.W. 5-Smt. Susheelamma as per Ex. P. 3. According to the contents of Ex. P. 3, P.W. 5 is aged about 65 years while her husband Appannaiah was aged 72 years. They have two sons and two daughters, who are all married. The daughters have been residing in their respective matrimonial homes while their two sons with their families have been residing independently, as such, P.W. 5 and her husband were residing in the house situated in Agrahara Road, Tumkur. The deceased Appannaiah was running business in Plastic Articles in Mandipet, Tumkur. On 18-3-1999 being Ugadi Festival day, the deceased Appannaiah returned to the house between 8.00 and 8.30 p.m. thereafter, P.W. 5 kept the dinner on the dining table for her husband and she went to bedroom for sleeping. Between 9.45 to 10.00 p.m., she woke-up on hearing the screaming sounds and came out of the bedroom and found that some unknown persons had asked her husband to give water for drinking and while her husband after opening the door was going inside the house to fetch them water, four assailants came inside the house pushing her husband into the hall and in the hall portion, one of the assailants by taking out a chopper hidden in the back, assaulted her husband on the back and the neck, as a result of which, her husband sustained bleeding injuries and fell on the ground. At that stage, two of the assailants came rushing to her, held her, tied her hands and legs with a rope and a towel and demanded her to show the place where they have kept money and since she told that they do not keep cash in the house and since the almirah is not locked, they themselves could check the almirah, the assailants opened the two almirahs and took-away two gold chains kept therein. Thereafter, they robbed of her three pairs of gold bangles and two row Mangalya Chain and in order to prevent her from raising alarm, they closed her mouth with an adhesive plaster and went away. According to the said report, four assailants were in the age group of 20, 30 and 40 and all of them were wearing shirts and pants, talking in Kannada language. According to the informant, since there was electric light in the hall portion of the house she could see the assailants and since she talked with them, she is in a position to identify them. It is further stated in Ex. P. 3 that after sometime, she some how extricated herself and came to the house of P.Ws. 1 and 2 and informed them about the incident. According to the case of the prosecution, P.W. 1 immediately informed the police over phone as well as P.W. 4, the son of P.W, 5, who on receiving information from P.W. 1, immediately rushed to the scene of occurrence and at that place P.W. 5 lodged the report to the police and the police received the report lodged by P.W. 5, and sent the same to the Police Station for registration of the case. As per the endorsement made on the FIR-Ex. P. 19, it reached the jurisdictional Magistrate at 8.45 a.m. on 19-3-1999. P.Ws. 1 and 2 in their evidence have corroborated the fact of P.W. 5 came to their house and informing them about the incident and in turn, P.W. 1 informing the police and P.W. 4. P.W. 4 in his evidence has reiterated the fact of receiving information from P.W. 1 and he rushing to the scene of occurrence and seeing his father lying dead in a pool of blood. P.W. 5 in her oral evidence has reiterated the incident of robbery and murder while her husband was inside the house. From the evidence of P.W. 18-Investigating Officer, it is established that, on receipt of the information, he rushed to the scene of occurrence, saw the dead body of Appannaiah lying dead in pool of blood inside the house and at that place, he received the report-Ex. P. 3, which was sent to the Police Station for registration and thereafter, he conducted inquest over the dead body and later subjected the dead body to the post-mortem examination. The evidence of P.W. 15-Dr. Siddaiah and the contents of post-mortem report-Ex. P, 18 clearly establish that the deceased Appannaiah had sustained as many as eight external injuries and he has died on account of those injuries suffered by him. The evidence in this regard has not been seriously controverted by the defence. Perusal of the entire records indicate that the accused have not seriously disputed the incident of robbery inside the house of P.W. 5 and the death of deceased Appannaiah as homicidal.

We have carefully examined the evidence of the witnesses and the findings recorded by the learned Sessions Judge in this regard and we are convinced that the learned Sessions Judge is justified in holding that the prosecution has proved the incident of robbery in the house of P.W. 5 in the night of 18-3-1999 and the homicidal death of Appannaiah by assailants during the commission of robbery. We find no perversity or illegality in the said finding recorded by the learned Sessions Judge and there are no reasons warranting interference with the said finding. Hence, Point No. 1 is answered in the affirmative.

Regarding Point Nos. 2 to 4

As noticed supra, in order to prove the complicity of accused 1 to 3 to the aforesaid acts, the prosecution relied on the direct evidence of P.W. 5 and the circumstances regarding recovery of weapon used in the commission of offence and recovery of gold ornaments. Identification of the accused during Test Identification Parade, as the assailants. Perusal of the judgment under appeal indicate that the learned Sessions Judge after referring to the oral evidence of P.W. 5 has held that her evidence is cogent and consistent and she being the wife of the deceased, her presence inside the house is quite natural and she had all the opportunity to see the assailants and the culprits, and later she has also identified accused 1 to 3 in the Test Identification Parade conducted and thus the evidence of P.W. 5 is sufficient to connect accused 1 to 3 to the commission of the offence. The learned Sessions Judge has also further noticed that the prosecution has proved seizure of M.Os. 4 to 6 at the instance of accused. 1 to 3 and the evidence of P.W. 5 establishes the identify of M.O. 5 as belonging to her, therefore, the complicity of accused 1 to 3 to the offence is satisfactorily established. These findings are seriously under challenge.

In the light of the above, we have carefully perused the evidence of P.W. 5. No doubt, P.W. 5 is the wife of the deceased Appannaiah. Her evidence further establishes that though she had two sons, both her sons have been living away with their family, as such, only P.W. 5 and the deceased were living in the said house. The incident of robbery and murder has occurred between 9.45 and 10.00 p.m. on 18-3-1999, which was Ugadi Festival day. P.W. 5 in her evidence has categorically stated that she was in the house on that day and between 8.00 and 8.30 p.m., her husband came home from the shop, and after keeping all the eatables on the dining table, she went to bedroom and while she was sleeping in the bedroom, she woke up on hearing the screaming sounds of her husband and when she came out, she saw her husband being pushed into the hall portion of the house by four culprits and one of them assaulting her husband with a chopper on the back of the neck. This part of the evidence of P.W. 5 has not been seriously controverted in the cross-examination. Therefore, her presence in the house is not seriously disputed and her presence in the house is quite natural, as such, she was an eye-witness to the incident.

Now the question is as to whether P.W. 5 was in a position to identify the assailants at that time?

Even according to P.W. 5, by 9.00 p.m., she went to bedroom for the purpose of sleeping after keeping all the food items on the dining table for consumption by her husband. She said to have woke-up between 9.45 to 10.00 p.m. on hearing the screaming sounds of her husband. This indicates that she had already slept and suddenly she appears to have came out of the bedroom. No doubt, P.W. 5 has stated that there was an electric bulb burning in the hall portion, so that she could identify the assailants. Having regard to the fact that her husband alone was in the hall and he was attacked by four persons, on seeing such an incident, it is quite natural that she must have been under great fear and scared. In such circumstances it is highly difficult to believe that P.W. 5 could have good gaze at the assailants, so that their image could be imprinted in her mind based on which she could properly identify them later. Admittedly, the assailants were strangers. Of course, according to P.W. 5, two of the assailants came near her and by tying her hands and legs, demanded her to show the place where the valuables and cash are kept. Her further evidence indicates that she had talked with two of the assailants. Nevertheless, it is highly difficult to believe that she had complete glimpse of the faces of the assailants so that they could be identified by her. It is pertinent to note that in the report lodged at the earliest point of time as per Ex. P. 3, P.W. 5 except stating that the culprits were between the age group of 20, 30 and 40, and were wearing pants and shirts, no other description of the assailants had been furnished. If really P.W. 5 had a complete glimpse of the assailants, she would have been in a position to furnish the details of the features of the assailants. However, no such details as to the features of the assailants have been furnished in the report-Ex. P. 3. Even as per the evidence of P.W. 5, during the month of January 2000, she saw a newspaper in the house of her son Anantharaju, wherein the photographs of certain culprits had been published, in which each of them were holding slate on which their names had been written and she identified one of them and later she went to Police Station and informed the police about the same. From the evidence of P.W. 18-Investigating Officer, it is clear that till 22-1-2000, they were clueless about the culprits and it was only on 23-1-2000 when P.W. 5 came to the Police Station with a Kannada Daily Newspaper ''Sanjevani'' dated 21-1-2000 identifying two of the culprits, whose photographs had been published therein as the assailants, he got some clue and thereafter, he secured the presence of accused 1 through body warrant and through the alleged voluntary statement of accused 1, the complicity of accused 2 and 3 to the offences alleged was revealed. It is necessary to note that according to P.W. 5, she identified only one culprit from out of the photograph found in the newspaper while according to P.W. 18, she identified two persons namely Dandupalya Krishna and Thimma as the two out of four assailants who entered her house and committed acts of robbery and murder. However, for the reasons best known to the Investigating Officer, the said Thimma said to have been identified by P.W. 5 as one of the assailants has not been arraigned as accused in this case. The presence of accused 2 and 3 were secured by the Investigating Officer in this case only on 27-4-2000. The test identification parade said to have been conducted by the Taluka Executive Magistrate-P.W. 14: Nagendra on 11-5-2000 i.e., nearly about 1 year 2 months after the incident. Even as per the evidence of P.W. 17-N. Chalapathi, Police Inspector, Banasawadi Police Station, Bangalore, he apprehended one Doddahanuma, Munikrishna (accused 3 in this case), and Venkatesh in connection with the case in Crime No. 353 of 1999 of Banasawadi Police Station. The evidence of P.W. 17 further establishes that even prior to 8-11-1999, accused 1-Dandupalya Krishna had been arrested by Mandya Police and his presence was secured by P.W. 17 through body warrant on 10-11-1999. On 5-11-1999, accused 2 was apprehended by P.W. 17. Thus, long prior to the alleged date of test identification parade, accused 1 to 3 had been arrested. Even from showing by the prosecution, the photographs of the arrested persons had been published in the newspaper for publicity. Under these circumstances, in our considered opinion, the evidentiary value of Test Identification Parade was lost and no reliance can be placed on the alleged identification of accused during Test Identification Parade. Therefore, in our considered opinion, the learned Sessions Judge is not justified in placing utmost confidence on the testimony of P.W. 5 with regard to the complicity of the accused to the commission of the offence. Merely because there was an incident of robbery clubbed with murder inside the house of P.W. 5 in the night of 18-3-1999, the Court cannot jump to a conclusion that the persons put up for trial before the Court as accused were responsible for the incident. It is for the prosecution to satisfactorily establish the complicity of the accused to the commission of the offence. In our considered opinion, the evidence of P.W. 5 with regard to the complicity of the accused based on the identify is not convincing and cogent. Therefore, the learned Sessions Judge has committed error in placing reliance on the testimony of P.W. 5 with regard to the complicity of accused 1 to 3.

Yet another circumstance accepted by the learned Sessions Judge was the recovery of M.Os. 4 to 7. M.Os. 1 to 3 are the material objects said to have been seized at the scene of occurrence, while M.O. 8 is another chopper said to have been recovered at the instance of accused 4, who is no more. M.O. 7 is not connected to the case on hand for the reason that even according to P.W. 5, the culprits robbed 2 gold chains kept in almirah, 3 pairs of gold bangles and 2 rowed mangalya chain from her person. It is not her say that gold hangings were robbed from her person. Therefore, M.O. 7 does not belonged to P.W. 5. Only M.Os. 4 to 6 are the ornaments stated to belonged to P.W. 5. Even according to the case of the prosecution, M.O. 4-2 bangles and M.O. 6-2 gold chains in the present form did not belong to P.W. 5 since the ornaments robbed from the house of P.W. 5 were got melted by one Mahesh alias Munivenkata through P.W. 10-Jaganathachari and new ornaments were made. Therefore, rightly P.W. 5 has not identified M.Os. 4 and 6 as belonging to her and since the police told her that M.Os. 4 and 6 were prepared after melting the ornaments robbed, she has stated that it belongs to her. Her evidence with regard to M.Os. 4 and 6 is based on the evidence of P.W. 10-Jagannathachari. Even according to the evidence of P.W. 10-Jagannathachari, one Munivenkatappa, an Auto Driver residing in Maruthi Nagar at Thirupathi was frequently coming to him with gold ornaments with a request to melt them and prepare new ornaments and during the month of January 2000, the said Munivekatappa gave him three gold bangles and two gold chains which he melted and prepared two chains and a pair of hangings and mati, for which, Munivenkatappa paid him Rs. 500/- as labour charges. Those ornaments said to have been pledged by said Munivenkatappa were seized from the possession of the Pawn Broker, who also has stated that those ornaments were pledged with him by Munivekatappa. Thus, from the evidence placed by the prosecution on record, it is clear that M.Os. 4 and 6 were not pledged by any of accused 1 to 3 nor they were recovered at their instance.

As noticed supra, Munivenkatappa has not been arraigned as an accused nor has been cited as a witness. The said Munivenkatappa was not examined before the Court. In the absence of examination of said Munivenkatappa, the evidence of P.W. 10-Jagannathachari and two Pawn Brokers as to pledging of M.Os. 4 and 6 would not in any way incriminate accused 1 to 3 to the incident in question.

In our considered opinion, the learned Sessions Judge has committed serious error in placing reliance on the circumstances regarding recovery of M.Os. 4,6 and 7. With regard to M.O. 5, according to P.W. 19, pursuant to the voluntary statement, accused 1, led him and panchas to his house in Dandupalya Village, where he produced one gold bangle-M.O. 5, which was seized. Though in her examination-in-chief-P.W. 5 has identified M.O. 5 as belonging to her since she was wearing the same daily, in the cross-examination, it is elicited from her that on the bangles the English Alphabet ''AS'' are itched and on that basis she identified that as belonging to her. However, on closely verifying M.O. 5, she admitted that there is no ''AS'' mark on the bangle-M.O. 5 and the ''AS'' mark is found only on the bangles-M.O. 4. Admittedly M.O. 4 was not the bangle relieved from the person of P.W. 5 since according to the case of the prosecution, those bangles were melted and new bangles were prepared. Thus, from the evidence of P.W. 5, it is clear that M.O. 5 does not bear any identification mark as sought to be made out by P.W. 5. Therefore, the identification of M.O. 5 as belonged to P.W. 5 is completely discredited in the cross-examination. Merely because the bangle-M.O. 5 was shown to have been recovered from the house of accused 1, in the light of the evidence of P.W. 5 that it does not bear the identification mark of ''AS'', the prosecution, in our considered opinion, has utterly failed to establish that M.O. 5 was the bangle robbed from the person of P.W. 5. Thus, identity of M.Os. 4 to 6 as belonging to P.W. 5, has not been established. Therefore, the alleged recovery of M.Os. 4 to 6, even if held to be proved, would not in any way, incriminate accused 1 to 3 to the incident alleged. In our considered opinion, the learned Sessions Judge in the course of the judgment has completely lost sight of these factors and appears to have been carried away by the fact that these accused in combination with other persons have been charge-sheeted for similar or allied offences in several cases and in some of them they have been either convicted or still the trial is going on, and has recorded a finding of guilt. The finding of guilt recorded by the learned Sessions Judge, in our considered opinion, is not supported by any legal and acceptable evidence. Thus, the findings recorded by the learned Sessions Judge is not based on any legal and acceptable evidence, as such, the judgment of conviction recorded by the learned Sessions Judge is highly perverse and illegal, and therefore, it is liable to be set aside. In the absence of any cogent and acceptable evidence to connect the accused to the incident in question, the accused persons are entitled for an order of acquittal of the charges levelled against them. u/s 368 of Cr.P.C., the High Court is empowered while hearing a reference u/s 366, even to acquit the accused persons. In other words, even in the absence of independent appeal by the person sentenced to death, the High Court while dealing with the reference made by the Court of Sessions for confirmation of sentence of death, is required to consider as to whether the conviction recorded is legal and if the Court finds that the judgment of conviction is perverse and illegal, the accused persons may be acquitted. However, in the case on hand, the convicted accused have filed independent appeals and in the light of the discussion made above, the appeals filed by accused 1 to 3 deserves to be allowed. Consequently, the reference made by the learned Sessions Judge u/s 366 of Cr.P.C. is liable to be rejected. Accordingly, we answer Point Nos. 2 to 4 and proceed to pass the following order.

Criminal Appeal Nos. 157 and 128 of 2011 by accused 1 to 3 are allowed. Impugned judgment of conviction dated 25-9-2010 and order of sentence dated 30-9-2010 passed in S.C. No. 25 of 2005 on the file of XXXIV Additional City Civil and Sessions Judge (Special Court), Central Prison Premises, Parappana Agrahara, Bangalore City, are set aside. Appellants/accused are acquitted of the charges levelled against them. Consequently, Cri. R.C. No. 6 of 2010 made u/s 366(1) of Cr.P.C. does not survive for consideration and the same is rejected.

Appellant/accused 1 to 3, who are in prison, are ordered to be set at liberty forthwith, if they are not required in any other case/cases. Registry to intimate the operative portion of the order to the Superintendent of Central Prison, where the appellants are presently lodged.