IN THE HIGH COURT OF KARNATAKA AT BANGALORE PRESENT: THE HON BLE Dr. JUSTICE K.BHAKTHAVATSALA AND THE HON BLE MR.JUSTICE K.N.

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 6 TH DAY OF MARCH 2014 PRESENT: THE HON BLE Dr. JUSTICE K.BHAKTHAVATSALA AND THE HON BLE MR.JUSTICE K.N.KESHAVANARAYANA CRL.R.C.No.6/2010 C/W CRIMINAL APPEAL No.157/2011 (C) AND CRIMINAL APPEAL No.128/2011 (C) In Crl.R.C No 6/2010: BETWEEN: The Registrar General, High Court of Karnataka, Bangalore.. Petitioner (By Sri. H. N. Nilogal, Special Public Prosecutor) AND: 1. Dandupalya Krishna, S/o. Seethappa, Aged 30 years, Residing at Dandupalya, Hosakote Taluk, Bangalore Rural District. 2. Venkatrama, S/o. Venkateshappa,

2 2 Aged 20 years, Residing at Kuralahalli. 3. Ramesh S/o. Muniyappa, Aged 25 years, Residing at Gunjoor Palya, Bangalore.... Respondents ***** This Criminal Referred Case is registered as required under Section 366 (1) of the Cr.P.C., for confirmation of death sentence awarded to accused 1) Dandupalya Krishna, UTP No.10207, 2) Venkatarama, UTP No.10210, 3) Muniyappa UTP No by judgment dated 25/ passed in S.C.No.25/2005 on the file of the XXXIV Additional City Civil and Sessions Judge (Special Court), Central Prison Premises, Bangalore. In Crl.A.No.157/2011: BETWEEN: 1. Dandu Palya Krishna, Aged about 30 years, S/o. Seethappa, Residing at Dandu Palya, Hosakote Taluk, Bangalore Rural District. 2. Venkatram, Aged about 20 years, S/o. Venkateshappa, Residing at Kuralahalli. 3. Ramesh, Aged about 25 years, S/o. Muniyappa,

3 3 Residing at Gunjoor Palya, Bangalore. (Accused Nos. 1 & 3 are now in Judicial Custody) [By Sri.Dinesh Kumar.K.Rao, Advocate]...Appellants AND: The State of Karnataka, By Tumkur City Police..Respondent (By Sri. H. N. Nilogal, Special Public Prosecutor) ***** This Criminal Appeal is filed under Section 374 (2) of the Cr.P.C. praying to set aside the order dated 25/ passed by the XXXIV Additional City Civil and Sessions Judge, (Special Court), Central Prison, Parappana Agrahara, Bangalore in S.C.No.25/2005, convicting the appellants/accused for the offences punishable under Sections 302 and 394 read with Section 34 of IPC, etc. In Crl.A.No.128/11: BETWEEN: Dandu Palya Krishna, Aged about 40 years, S/o. Seethappa, Residing at Dandu Palya, Hosakote Taluk, Bangalore Rural District. (Now in Judicial Custody, Central Prison,Bangalore)....Appellant [By Sri.Hashmath Pasha, Advocate]

4 4 AND: The State of Karnataka, By Tumkur Town Police, Tumkur. (Represented by Learned State Public Prosecutor)..Respondent (By Sri. H. N. Nilogal, Special Public Prosecutor) ***** This Criminal Appeal is filed under Section 374 (2) of the Cr.P.C. praying to set aside the judgment dated 25/ passed by the XXXIV Additional City Civil and Sessions Judge, (Special Court), Central Prison Premises, Parappana Agrahara, Bangalore, in S.C.No.25/2005, convicting the appellants/accused for the offences punishable under Sections 302 and 394 of IPC etc. The above Crl.R.C and Crl.Appeals coming on for hearing this day, Keshavanarayana. J., delivered the following: J U D G M E N T Criminal R.C. No.6/2010 is registered on the basis of the reference made under Section 366 of Cr.P.C. by XXXIV Additional City Civil and Sessions Judge (Special Judge), Central Prison, Parappana Agrahara, Bangalore, for confirmation of sentence of death dated passed in S.C. No.25/2005 against the respondent-accused for the offences punishable under Sections 302 and 394 r/w. 34 IPC.

5 5 2. Criminal Appeal 128/2011 by Accused No.1 and Criminal Appeal No.157/2011 by Accused Nos. 2 & 3 in S.C. No.25/2005 are directed against the judgment of conviction dated passed in the said case convicting them for the offences punishable under Sections 302 and 394 r/w. 34 of IPC and order of sentence dated sentencing them to death for the said offences. Therefore, both the reference as well as appeals filed by Accused Nos. 1 to 3 were heard together and are being disposed of by this common judgment. 3. For the sake of convenience, during the course of the judgment, the appellants in Criminal Appeal Nos. 157/2011 and 128/2011 are referred to as Accused Nos. 1 to The Circle Inspector, Tumkur Town Police Station, Tumkur, laid charge sheet against Accused Nos. 1 to 3 and another arraigned as Accused No.4 by name Chinnappa, son of Bellappa for the offences punishable under Sections 397, 302 r/w. 34 of IPC inter alia alleging that Accused Nos. 1 to 4 by sharing common intention of committing

6 6 robbery, barged into the house of deceased Appannaiah and PW.5-Smt. Susheelamma situated at Chickpet Agrahara, Tumkur, between 9.00 and p.m. on and demanded the deceased Appannaiah to hand-over 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 PW.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 PW.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. 5. According to the case of the prosecution, after some time of the assailants going away from the house, PW.5 managed to come out of the house, went near the house of PW.1-T.G. Adaveeshappa and PW.2-Bharathi, who were the tenants in occupation of a portion of the first floor in the

7 7 same building and informed them about the incident. PW.1 in turn, informed the police as well as PW.4-Parshwanatha, the son of the deceased Appannaiah and PW.5 about the incident. On receiving information, the police as well as PW.4 came near the house, where PW.5 lodged a report about the incident, based on which, the police registered the case in Crime No.52/1999 for the offence punishable under Section 394 of IPC against four unknown persons and tookup investigation. During investigation, PW.18-H.M. Omkaraiah, Circle Inspector, Tumkur Town Police Station, held inquest over the dead body, drew-up inquest report as per Ex.P2. After the inquest, he conducted spot-mahazar as per Ex.P1, whereunder he seized a towel, plaster, a white thread (rope) and a chopper lying at the spot as per MOs. 1 to 3 and also prepared a rough sketch of the scene of occurrence as per Ex.P20 and thereafter, the dead body was subjected to post-mortem examination. PW.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

8 8 Ex.P16. On , PW.5 saw the photographs of certain culprits published in Sanjevani Kannada Daily Newspaper and out of them, she identified two persons namely, Accused No.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 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, PW.18 came to know about Accused No.1-Dandupalya Krishna and another, Thimma identified by PW.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 No.1- Dandupalya Krishna and another, Thimma to his custody on During interrogation, Accused No.1 made voluntary statement about the commission of the offence in the house of PW.5. He also volunteered to produce one gold bangle robbed from the house of PW.5, which he has kept in his

9 9 house, if he is taken there. The said voluntary statement of Accused No.1 was reduced into writing as per Ex.P21, pursuant to which Accused No.1 led PW.8-Siddaraju and one Kumar as panchas as well as PW.18-Omkaraiah, the Investigating Officer, to his house situated in Dandupalya village on , where he produced one gold bangle as per MO.5 and the same was seized under Mahazar Ex.P10. The interrogation of Accused No.1 revealed the complicity of Accused Nos. 2 to 4 in the commission of the offence. It was also revealed that even Accused Nos.2 to 4 are in judicial custody in connection with some other case. Therefore, PW.18 secured the presence of Accused Nos. 2 to 4 through body warrant and recorded their voluntary statements. During interrogation, Accused Venkatarama made voluntary statement as per Ex.P22 and Accused No.3 Munikrishna made voluntary statement as per Ex.P23 and Accused No.4 Chinnappa made voluntary statement as per Ex.P24. Pursuant to their voluntary statements, Accused No.2 led PW.11-Krishnamurthy and the Investigating Officer to Tirupathi, where PW.7-Gangaram was asked to act as a pancha and in their presence, Accused

10 10 No.2 showed one Munivenkata as the person to whom he had given the robbed ornaments for pledging/sale. The said Munivenkata admitted the said fact and informed that he through one Jagannathachari (PW.10) got the ornaments melted and got prepared new ornaments and those new ornaments have been pledged in Ambika Pawn Brokers, Tirupathi run by PW.6-K. Pookraj. Accordingly, the said Munivenkata took the Investigating Officer and panchas to the shop of PW.6-Pookraj, who on admitting the fact of the said Munivenkata having pledged two gold chains, produced them and also produced the pawn receipt No.3709 dated PW.18 seized the photostat copy of the pawn receipt as per Ex.P7 and the ledger extract as per Ex.P8 and also two gold chains as per MO.6 under mahazer-ex.p9. The said Munivenkata also informed the Investigating Officer that some of the ornaments given to him by Accused No.3 also were got melted through PW.10-Jagannathachari and newly prepared ornaments have been pledged with Jagadamba Pawn Brokers, run by PW.9-Shamlal. Accordingly, the said Munivenkata took the Investigating Officer and

11 11 panchas to the shop of PW.9, where PW.9 identified the said Munivenkata and also admitted the factum of the said Munivenkata pledging two bangles. PW.9 produced two bangles as well as Pawn Receipt No.7812 dated PW.18 seized the Pawn Receipt as well as two bangles under mahazar-ex.p11. The two Bangles seized are marked as MO.4. On the same day, a pair of gold hangings were also recovered from the shop of PW.13- Govindalalsharma, which are marked as MO.7, which according to said Munivenkata, were the one prepared out of the ornaments given by Accused No.4- Chinnappa. MO.7 was seized under mahazar-ex.p13. On at the instance of Accused No.4-Chinnappa, a chopper said to have been used in the commission of the offence was seized from the house of Accused No.4 situated in Dandupalya Village under Ex.P.12 as per MO.8 on During investigation, Test Identification Parade was conducted, wherein, PW.5 identified the accused as the culprits. The seized ornaments were identified by PW.5 and others. On completion of investigation, charge sheet came to

12 12 be laid. All the four accused persons remained in judicial custody. 7. 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 No.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. 8. In order to bring home the guilt of the accused for the charges levelled against them, the prosecution examined PWs. 1 to 18, relied on documentary evidence-exs. P1 to P24 and material objects-mos. 1 to 8. During crossexamination of PW.5, defence got marked a portion of her statement as Ex.D1. During the pendency of trial, Accused

13 13 No.4-Chinnappa died on , as such, the case as against him was closed as abated. During their examination under Section 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. 9. 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 PW.5, in the night of Appannaiah and during the said incident of robbery, was done to death, as such, the death of Appannaiah was homicidal. The learned Sessions Judge further held that the evidence of PW.5 the sole eye witness and other circumstances established by the prosecution has proved beyond reasonable doubt the complicity of Accused Nos. 1 to 3 for the commission of the aforesaid crimes. In the light of the said finding, the learned Sessions Judge held

14 14 Accused Nos. 1 to 3 guilty of the offences punishable under Sections 302, 394 r/w.34 IPC and accordingly, convicted them for the said offences. 10. 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 Nos. 1 to 3 to death for the aforesaid offences and submitted a reference to this court under Section 366 of Cr.P.C for confirmation of the sentence of death. 11. As noticed supra, Accused Nos. 1 to 3 have preferred independent appeals questioning the legality and correctness of the judgment of conviction and order of sentence.

15 We have heard Sri. Hashmath Pasha, learned counsel appearing for Accused No.1-appellant in Crl.A. No.128/2011 and Sri. Dinesh Kumar K. Rao, learned counsel appearing for Accused Nos. 2 & 3 in Crl.A. No.157/2011 and Sri. H.N. Nilogal, Special Public Prosecutor for the Respondent-State. 13. 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 Nos. 1 to 3 guilty of the charges; that the learned Sessions Judge has failed to appreciate that the evidence of PW.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 PW.5; that the evidentiary value of Test Identification Parade, in which PW.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 asailaints had been published in the newspaper, through which PW.5 said to

16 16 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 PW.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 PW.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 MOs. 4, 6 & 7 would not in any way incriminate Accused Nos. 2 & 3 for the reason that the said recoveries, even as per the prosecution, have been made at the instance of one 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 MO.5 at the instance of Accused No.1 is concerned and its identification

17 17 as belonging to PW.5 has not been satisfactorily established, therefore, recovery of MO.5 would not in any way incriminate Accused No.1 to the crime alleged; that the recovery of MOs. 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 Nos. 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 Nos. 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. 14. Sri. Dinesh Kumar. K. Rao, learned counsel, adopted the arguments of Sri. Hashmath Pasha.

18 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 PW.5 being the only other inmate of the house, and since the incident occurred between 9.00 and 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 Nos. 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

19 19 valuables robbed from the house of PW.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 Nos. 1 to 3 to death, as such, the order of sentence does not call for interference by this court. 16. 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 PW.5 during the night of ? ii) Whether the learned Sessions Judge is justified in holding that the prosecution has proved the complicity of Accused Nos. 1 to 3 in the aforesaid crime?

20 20 iii) Whether the learned Sessions Judge is justified in holding Accused Nos. 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 Nos. 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? 17. 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 PW.5-Smt. Susheelamma as per Ex.P3. According to the contents of Ex.P3, PW.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, PW.5 and her husband were residing in the house situated in Agrahara Road, Tumkur. The deceased Appannaiah was running

21 21 business in Plastic Articles in Mandipet, Tumkur. On being Ugadi Festival day, the deceased Appannaiah returned to the house between 8.00 and 8.30 p.m. thereafter, PW.5 kept the dinner on the dining table for her husband and she went to bedroom for sleeping. Between 9.45 to 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

22 22 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.P3 that after some time, she some how extricated herself and came to the house of PWs.1 & 2 and informed them about the incident. According to the case of the prosecution, PW.1 immediately informed the police over phone as well as PW.4, the son of PW.5, who on receiving information from PW.1, immediately rushed to the scene of occurrence and at that place PW5 lodged the report to the police and the police received the report lodged by PW.5, and sent the same to the Police Station for registration of the case. As per the endorsement made on the FIR-Ex.P19, it reached the

23 23 jurisdictional Magistrate at 8.45 a.m. on PWs. 1 & 2 in their evidence have corroborated the fact of PW.5 came to their house and informing them about the incident and in turn, PW.1 informing the police and PW.4. PW.4 in his evidence has reiterated the fact of receiving information from PW.1 and he rushing to the scene of occurrence and seeing his father lying dead in a pool of blood. PW.5 in her oral evidence has reiterated the incident of robbery and murder while her husband was inside the house. From the evidence of PW.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.p3, 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 postmortem examination. The evidence of PW.15-Dr. Siddaiah and the contents of post mortem report Ex.P18 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

24 24 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 PW.5 and the death of deceased Appannaiah as homicidal. 18. 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 PW.5 in the night of 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. 19. Regarding Point Nos.2 to 4: As noticed supra, in order to prove the complicity of Accused Nos. 1 to 3 to the aforesaid acts, the prosecution relied on the direct evidence of PW.5 and the circumstances

25 25 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 PW.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 Nos. 1 to 3 in the Test Identification Parade conducted and thus the evidence of PW.5 is sufficient to connect Accused Nos. 1 to 3 to the commission of the offence. The learned Sessions Judge has also further noticed that the prosecution has proved seizure of MOs. 4 to 6 at the instance of Accused Nos. 1 to 3 and the evidence of PW.5 establishes the identify of MO.5 as belonging to her, therefore, the complicity of Accused Nos. 1 to 3 to the offence is satisfactorily established. These findings are seriously under challenge.

26 In the light of the above, we have carefully perused the evidence of PW.5. No doubt, PW.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 PW.5 and the deceased were living in the said house. The incident of robbery and murder has occurred between 9.45 and p.m. on , which was Ugadi Festival Day. PW.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 PW.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

27 27 house is quite natural, as such, she was an eye-witness to the incident. 21. Now the question is as to whether PW.5 was in a position to identify the assailants at that time? 22. Even according to PW.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 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, PW.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 PW.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.

28 28 Admittedly, the assailants were strangers. Of course, according to PW.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. Nevetheless, 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.P3, PW.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 PW.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.p3. Even as per the evidence of PW.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

29 29 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 PW.18-Investigating Officer, it is clear that till , they were clueless about the culprits and it was only on when PW.5 came to the Police Station with a Kannada Daily newspaper Sanjevani dated 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 No.1 through body warrant and through the alleged voluntary statement of Accused No.1, the complicity of Accused Nos. 2 & 3 to the offences alleged was revealed. It is necessary to note that according to PW.5, she identified only one culprit from out of the photograph found in the newspaper while according to PW.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 PW.5 as one of the assailants has not been

30 30 arraigned as accused in this case. The presence of Accused Nos. 2 & 3 were secured by the Investigating Officer in this case only on The Test Identification Parade said to have been conducted by the Taluka Executive Magistrate- PW.14: Nagendra on i.e., nearly about 1 year 2 months after the incident. Even as per the evidence of PW.17-N. Chalapathi, Police Inspector, Banasawadi Police Station, Bangalore, he apprehended one Doddahanuma, Munikrishna (A-3 in this case), and Venkatesh in connection with the case in Crime No. 353/1999 of Banasawadi Police Station. The evidence of PW.17 further establishes that even prior to , Accused No.1 Dandupalya Krishna had been arrested by Mandya police and his presence was secured by PW.17 through body warrant on On , Accused No.2 was apprehended by PW.17. Thus, long prior to the alleged date of Test Identification Parade, Accused Nos. 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

31 31 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 PW.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 PW.5 in the night of , 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 PW.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 PW.5 with regard to the complicity of Accused Nos. 1 to Yet another circumstance accepted by the learned Sessions Judge was the recovery of MOs. 4 to 7. MOs. 1 to 3 are the material objects said to have been seized at the scene

32 32 of occurrence, while MO.8 is another chopper said to have been recovered at the instance of Accused No.4, who is no more. MO.7 is not connected to the case on hand for the reason that even according to PW.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, MO.7 does not belonged to PW.5. Only MOs. 4 to 6 are the ornaments stated to belonged to PW.5. Even according to the case of the prosecution, MO.4 2 Bangles and MO.6-2 gold chains in the present form did not belong to PW.5 since the ornaments robbed from the house of PW.5 were got melted by one Munivenkata through PW.10- Jaganathachari and new ornaments were made. Therefore, rightly PW.5 has not identified MOs. 4 and 6 as belonging to her and since the police told her that Mos. 4 & 6 were prepared after melting the ornaments robbed, she has stated that it belongs to her. Her evidence with regard to MOs.4 & 6 is based on the evidence of PW.10-Jagannathachari. Even according to the evidence of PW.10-Jagannathachari, one Munivenkatappa, an Auto Driver residing in Maruthi Nagar

33 33 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 MOs. 4 and 6 were not pledged by any of Accused Nos. 1 to 3 nor they were recovered at their instance. 24. 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 PW.10-Jagannathachari and two Pawn Brokers as to pledging of MOs. 4 and 6 would

34 34 not in any way incriminate Accused Nos. 1 to 3 to the incident in question. 25. In our considered opinion, the learned Sessions Judge has committed serious error in placing reliance on the circumstances regarding recovery of MOs. 4, 6 & 7. With regard to MO.5, according to PW.19, pursuant to the voluntary statement, Accused No.1, led him and panchas to his house in Dandupalya Village, where he produced one gold bangle MO.5, which was seized. Though in her examination-in-chief PW.5 has identified MO.5 as belonging to her since she was wearing the same daily, in the crossexamination, 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 MO.5, she admitted that there is no AS mark on the bangle-mo.5 and the AS mark is found only on the bangles-mo.4. Admittedly MO.4 was not the bangle relieved from the person of PW.5 since according to the case of the prosecution, those bangles were melted and new bangles were prepared. Thus, from the evidence of PW.5, it is clear

35 35 that MO.5 does not bear any identification mark as sought to be made-out by PW.5. Therefore, the identification of MO.5 as belonged to PW.5 is completely discredited in the cross-examination. Merely because the Bangle-MO.5 was shown to have been recovered from the house of Accused No.1, in the light of the evidence of PW.5 that it does not bear the identification mark of AS, the prosecution, in our considered opinion, has utterly failed to establish that MO.5 was the bangle robbed from the person of PW.5. Thus, identity of MOs. 4 to 6 as belonging to PW.5, has not been established. Therefore, the alleged recovery of MOs. 4 to 6, even if held to be proved, would not in any way, incriminate Accused Nos. 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 chargesheeted 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

36 36 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. Under Section 368 of Cr.P.C., the High Court is empowered while hearing a Reference under Section 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

37 37 Nos. 1 to 3 deserves to be allowed. Consequently, the reference made by the learned Sessions Judge under Section 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. 26. Criminal Appeal Nos. 157/2011 and 128/2011 by Accused Nos. 1 to 3 are allowed. Impugned Judgment of Conviction dated and order of sentence dated passed in S.C. No.25/2005 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, Crl.R.C. No.6/2010 made under Section 366(1) of Cr.P.C. does not survive for consideration and the same is rejected. 27. Appellant/Accused Nos. 1 to 3, who are in prison, are ordered to be set at liberty forthwith, if they are not required in any other case/s.

38 Registry to intimate the operative portion of the order to the Superintendent of Central Prison, where the appellants are presently lodged. SD/- JUDGE SD/- JUDGE KGR*