Dismissed

State of Karnataka v. Lakshmana @ Ouranga

Karnataka HC15 Sept 2023CRL.A/1242/2016

Case brief

AI extract

What is this about?

State appeal against acquittal for dacoity and murder. The High Court found that identification was unreliable and the recovery of articles was doubtful. Accused Nos.1 and 2 proved an alibi, being in judicial custody on the date of occurrence. Appeal dismissed and acquittal confirmed.

What did the court decide?

The Criminal Appeal was dismissed. Accused No.1, in judicial custody, was ordered to be released immediately unless required in another case.

State of Karnataka Vs Lakshmana @ Ouranga — Murder and Culpable Homicide | Karnataka HC (2023)

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NC: 2023:KHC:33828-DB CRL.A No. 1242 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE ANIL B KATTI

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CRIMINAL APPEAL NO. 1242 OF 2016 (A)

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BETWEEN:

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State of Karnataka By Mysuru South Police Represented by State Public Prosecutor, High Court Building, Bengaluru. 570001.

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…Appellant

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(By Sri. Vinay Mahadevaiah., High Court Govt. Pleader)

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AND:

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Digitally signed by VEENA KUMARI B Location: High Court of Karnataka

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Lakshmana @ Ouranga Son of late Ramaiah, Aged about 61 years, R/o. Kalkunike village, Hunsur Taluk. 571105

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Kumara @ Venkatesha, Son of Lakshmana @ Ouranga, Aged about 26 years, R/o. Thaggalli Village, Malavalli Taluk.571430.

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Devaraju, Son of late Modiramaiah, Aged 33 years, R/o. Hut, 'B' Cross, Doddaballapura, Chikkaballapura District.562101.

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Revanna @ Reva, Son of late Venkatappa, Aged about 31 years, R/o. Santhe Korahalli village, Kanakapura Taluk. 562117.

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…Respondents

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(By Smt. K.M. Archana, Amicus Curiae for R-1 and R-2; appeal against R-3 and R-4 is abated vide order dated 11-11-2021)

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This Criminal Appeal is filed under Section 378(1) and (3) of Code of Criminal Procedure, 1973, praying to grant leave to appeal against the impugned judgment and order of acquittal dated 17-10-2015, passed by the learned VI Additional District and Special Judge, Mysuru in S.C.No.42/2010 thereby acquitting accused/ respondents of the offence punishable under Section 396 of the IPC; set aside the aforesaid judgment and order of acquittal passed by the learned VI Additional District and Special judge, Mysuru in S.C.No.42/2010 thereby acquitting accused/respondents of the offence punishable under Section 396 of the IPC; convict and sentence the accused/respondent for the offence punishable under Section 396 of IPC, in the interest of justice and equity and pass such

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other order or direction that this Court deems fit to pass in the facts and circumstances of the case.

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This Criminal Appeal coming on for Final Hearing through Physical Hearing/Video Conference this day, Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :

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J U D G M E N T

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The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."), challenging the judgment of acquittal dated 17-10-2015, passed by the learned VI Additional District and Special Judge, Mysuru, (hereinafter for brevity referred to as the "Sessions Judge's Court") in Sessions Case No.42/2010, acquitting the accused of the offence punishable under Section 396 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC").

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The summary of the case of the prosecution in the Sessions Judge's Court was that, on the date 09-08-2005, at about 2:00 a.m., the accused Nos.1 to 4 along with two other absconded accused by names

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Kyatagatti Venkatesh and Mahadev, with an intent to commit robbery of cash and gold belonging to

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Sri. Jwalamukhi Tripura Sundari Amma Temple situated at S. Uttanahalli, within the limits of the complainant Police Station, trespassed into the said Temple and committed murder of watchman one Sri. Allaiah, by assaulting him with deadly weapon and causing grievous injuries to PW-2 (CW-2) -Javara and PW-3 (CW-3) - Beeraiah, who were also the watchmen and sleeping in the Temple and committed dacoity of cash available in the hundi of the Temple, steel almirah and also of gold and silver ornaments which were on the idol of the goddess.

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It is further the case of the prosecution that the accused thereafter sold the robbed gold and silver ornaments to accused No.5 and accused No.6. Thus, accused No.5 and accused No.6 purchased the robbed articles, which articles were apparently looking as belonging to a Temple and not used by any individual in their private houses, from accused Nos.1 to 4. With this,

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the charge sheet was originally filed for the offences punishable under Sections 302 and 397 read with Section 34 of the IPC as against all the six accused persons and as against accused No.5 and accused No.6, the offence punishable under Section 411 of the IPC was alleged.

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Earlier, the Investigating Officer had filed a 'C' report, stating that the accused could not be traced out, however, the case was re-opened stating that the accused Nos.1 to 4 along with two other accused were found preparing to commit robbery on the date 14-11-2008 at Gunjanarasimhaswamy Temple in T. Narasipura and were caught by T. Narasipura Police. In that connection, a Crime No.250/2008 for the offences punishable under Sections 399 and 402 of the IPC was registered. During investigation in the said case, it was revealed about the commission of dacoity with murder of a person in S. Uttanahalli Temple on the date 09-08-2005 and to which effect, accused Nos.1 to 4 were said to have given their voluntary statements before the Investigating

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Officer, revealing the whereabouts of the robbed ornaments and other articles. Accordingly, the investigation was continued in the instant case which ended up in the complainant Police filing charge sheet against the present accused persons. The other two accused by names Kyatagatti Venkatesh and Mahadeva were shown in the charge as the absconded accused.

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After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed charges as against accused Nos.1 to 4 for the offence punishable under Section 396 of the IPC and as against accused No.5 and accused No.6 for the offence punishable under Section 412 of the IPC. Since the accused herein pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all twenty eight (28) witnesses from PW-1 to PW-28, got produced and marked documents from Exs.P-1 to P-28(v) and produced Material Objects from MO-1 to MO-64. From the

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accused’s side, the accused No.1 got himself examined as DW-1 and one Sri. K.S. Samiulla, Superintendent of Jail, Tumakuru Prison, was examined as DW-2 and five documents were got marked as exhibits from Ex.D-1 to D-5.

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During the pendency of the case before the Sessions Judge's Court, due to the death of accused No.5 and accused No.6, the case came to be abated as against them.

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After hearing both side, the learned Sessions Judge’s Court, by its judgment dated 17-10-2015, acquitted the accused of the offence punishable under Sections 396 of the IPC. Challenging the same, the appellant - State has preferred the present appeal.

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The appellant –State is represented by the learned High Court Government Pleader.

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In view of the fact that the learned counsel for the respondents No.1 and 2 (accused Nos.1 and 2) failed

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to appear before this Court on several dates of hearing in spite of granting several opportunities, this Court, by its reasoned orders dated 28-07-2023 and 28-08-2023, appointed learned counsel - Smt. K.M. Archana, as Amicus Curiae for the respondent No.2(accused No.2) and respondent No.1 (accused No.1) respectively, to represent them in this case.

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Learned High Court Government Pleader for the appellant - State and learned Amicus Curiae for the respondents No.1 and 2 (accused Nos.1 and 2) are physically appearing in the Court.

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The Sessions Judge’s Court's records were called for and the same are placed before this Court.

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Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge’s Court's records.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge’s Court.

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Learned High Court Government Pleader for the appellant (State) in his very brief argument submitted that, it is based upon the voluntary statements given by the accused persons, the recovery was made. He submitted that, in the Test Identification Parade (TIP), PW-2 and PW-3 have identified accused No.1 only. Those two witnesses (PW-2 and PW-3) have also supported the case of the prosecution. As such, the prosecution has proved the case as against accused No.1, beyond reasonable doubt.

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In support of his submission, he relied upon a judgment of the Hon’ble Apex Court in the case of RAJU MANJHI VS. STATE OF BIHAR reported in (2019) 12 Supreme Court Cases 784 and submitted that based upon a confession made by the accused in the Police custody, recovery of the articles can be made.

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However, after hearing the respondents' argument in the matter, in his reply argument, the learned High Court Government Pleader submitted that the prosecution has no case as against accused Nos.2 to 4 except as against accused No.1. Thinking that, by the slip of his tongue the learned High Court Government Pleader must have made the said submission, this Court repeatedly asked him as to whether he has made the said submission with due responsibility and as to whether the said submission be recorded in the order sheet? In response, the learned High Court Government Pleader submitted that his submission can be recorded in the order sheet. Accordingly, his submission that the appellant - State fairly concedes that the prosecution has got no case except as against accused No.1 was recorded in the order sheet dated 11-09-2023. On the same day, this Court directed the learned High Court Government Pleader appearing for the State to file his Written Argument.

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Accordingly, learned High Court Government Pleader filed his Written Argument. In his Written Argument, he has stated that, since the entire evidence led by the prosecution leaves for no dispute that the dacoity with murder has taken place on the intervening night between the dates 08-08-2005 and 09-08-2005 in the Temple, the prosecution has proved beyond all reasonable doubt that, accused Nos.1 to 4 along with two other absconded accused have committed the offence alleged against them. The evidence of PW-1 the complainant which has come out

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in a detailed manner which is corroborated by the evidence of PW-2 and PW-3, has proved the case of the prosecution. The evidence of PW-6 - the Executive Officer, the evidence of PW-7 - the paarupattegara of the Temple, the evidence of PW-8 - the devotee of the Temple, proves the identity of the stolen ornaments. The evidence of PW-9 - the Tahsildar has established she conducting Test Identification Parade (TIP) and PW-2 - Javara identifying accused No.1. The evidence of PW-14 the Police SubInspector of T. Narasipura Police Station stands

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corroborated regarding the recovery of the stolen articles. The evidence of PW-27 - Investigating Officer speaks about the voluntary statement of the accused Nos.1 to 4. It is also contended in the Written Argument that confession statement of the accused persons have satisfied the test of Section 27 of the Indian Evidence Act, 1872. Even if such statements have been made while the accused are in Police Custody, the accused have explained how they executed their plan and the way in which they committed murder and shared the spoils. The recoveries were made at the disclosure by the accused which corroborates the confession statements and proves their guilt.

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It is in that regard, the learned High Court Government Pleader has relied upon RAJU MANJHI's case (supra) . Thus, the evidence of PW-1, PW-2, PW-6, PW-7, PW-8, PW-14 and PW-27 corroborates the case of the prosecution. The evidence of PW-15 proves the recovery made at the instance of the accused. Thus, the

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prosecution has proved its case beyond doubt. With this, the appellant - State prayed to allow the appeal by setting aside the impugned judgment of acquittal.

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The learned Amicus Curiae for the respondents No.1 and 2 (accused Nos.1 and 2) in her argument submitted that, the accused No.1 and accused No.2 were not present at the place of the alleged offence on the date of the alleged incident since both of them were in Judicial Custody with respect to another matter in the Tumakuru Prison. She further submitted that the Test Identification Parade(TIP) conducted in the matter also does not inspire the confidence to believe, since PW-2 and PW-3 have stated in their evidence that at the time of the incident, there was total darkness and there was no light in the area and that their faces were covered and they were tied. Further PW-3 had fallen unconscious, as such, the question of they seeing the accused and further identifying them in the Test Identification Parades (TIPs) is not safe to believe.

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Learned Amicus Curiae further contended that the alleged recovery said to have been made at the instance of the accused is also highly doubtful and not believable. The evidence of the prosecution witnesses on the point of alleged recovery is contradictory. If, according to the prosecution, the accused Nos.1 to 4 have given their voluntary statement on the same day, however, among them, accused No.4 is said to have run away, then it cannot be believed that the accused had given the voluntary statement as alleged by the prosecution.

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Learned Amicus Curiae further submitted that the alleged weapon which was a 'chopper' used in the commission of the offence has not been recovered by the Investigating Officer. Further, stating that when the alleged robbed articles were said to have been melted converting them into silver and gold ingots, it is highly unbelievable that the alleged losers of the articles have identified those ingots as the ornaments said to have been robbed by the accused. With this, she submitted

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that the impugned judgment of acquittal thus does not warrant any interference at the hands of this Court.

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After hearing the learned High Court Government Pleader for the appellant-State and learned Amicus Curiae for the respondents No.1 and 2 (accused Nos.1 and 2) and going through the entire material placed before the Court, the points that arise for our consideration in this appeal are:

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[i] Whether the prosecution has proved beyond reasonable doubt that, the present respondents No.1 and 2, joined by respondents No.3 and 4 against whom the appeal has become abated and one Sri. Kyatagatti Venkatesh and Mahadeva - the absconded accused, have, on the intervening night between the dates 08-08-2005 and 09-08-2005 in Sri. Jwalamukhi Tripura Sundari Amma Temple in S. Uttanahalli, within the limits of the complainant Police Station, committed dacoity with murder of one Sri. Allaiah, a watchman in the Temple and thus have committed an offence punishable under Section 396 of the Indian Penal Code, 1860?

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[ii] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

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Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that, it is an appeal against the judgment of acquittal of accused for the offence punishable under Section 396 of the IPC. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the accused has already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.

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(a) Our Hon’ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415 , while laying down the general principles regarding powers of the

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Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:

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“ 42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

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42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.”

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(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa’s case (supra), the Hon’ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in

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criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.

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(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon’ble Apex Court was pleased to observe as below:

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“ 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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The above principle laid down by it in its previous case was reaffirmed by the Hon’ble Apex Court, in the

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case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.

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It is keeping in mind the above principles laid down by the Hon’ble Apex Court, we proceed to analyse the evidence placed by the prosecution in this matter.

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Among the 28 witnesses examined by the prosecution, PW-1(CW-1) - Praveen Kumar, PW-2 (CW-2) – Javara, PW-3 (CW-3) – Beeraiah, PW-5 (CW-10) – Basavaraju, PW-18(CW-38) – Kareem Raovatar, PW-19 (CW-41) -K.R. Kantharaju, PW-20 (CW-44) - Mallikarjuna, PW-21(CW-52) - Pandu and PW-24 – Narasimhaiah T.D., in their evidence have stated that, on the intervening night of the dates 08-08-2005 and 09-08-2005, an incident of dacoity has taken place in Sri. Jwalamukhi Tripura Sundari Amma Temple, in which incident of dacoity, after killing the night watchman by

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name Sri.Allaiah, the accused have also robbed the cash and gold and silver ornaments of the deity. Their evidence to the effect that, such an incident of dacoity with murder of one Sri. Allaiah, the night watchman has taken place on the intervening night of the dates 08-08-2005 and 09-08-2005, has not been denied in their crossexamination. As such, the evidence led by the prosecution witnesses about the occurrence of the incident of dacoity and murder of the watchman Sri.Allaiah in the said incident has remained un-denied.

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As such, the point that remains for consideration is, whether the present respondents No.1 and 2 were among the dacoits who have committed the offence of dacoity with murder of watchman Allaiah?

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PW-1(CW-1) - Praveen Kumar, PW-2 (CW-2) - Javara and PW-3(CW-3) - Beeraiah are the primary and material witnesses who have spoken about the incident. Among these witnesses, PW-2 and PW-3 have also spoken about the accused and their identity.

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PW-1 is the priest of Sri. Jwalamukhi Tripura Sundari Amma Temple, S. Uttanahalli. He has stated that along with him, three more priests and one 'Agamika' (a person who takes part in the worship and pooja performance of the deity) are also in the Temple. There are several ornaments belonging to the goddess, some of them would be permanently on the idol of the deity, some others would be adorned to the deities on special days and on other days, they will be kept in an Almirah which is in the sanctum sanctorum of the Temple. The Temple which

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opens in the morning at 5:30 a.m. would be closed in the night at 8:30 p.m. with a break from 2:00 p.m. to 3:30 p.m. On the date 08-08-2005, since it was his turn as a priest to perform the pooja in the Temple, he had closed the sanctum sanctorum and put a lock to it at 8:30 p.m. on that night and had left home showing the lock and key to the watchman Thimmaiah. The next day morning i.e. on the date 09-08-2005, when he returned to the Temple for performing pooja, he heard the screaming noise from inside the Temple as "we have been confined in the

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Temple, help, help". Climbing the compound wall, he entered inside the Temple and noticed that watchman Allaiah was found dead with some injuries on his body. Javara and Beeraiah were found tied with their own clothes in Siddeshwara Swamy Temple. The outside door was locked. After unbolting the door, he ran to the home and informed the same to his father and also to one Sri. Radhakrishna, who was the paarupattegara (a position akin to that of a 'Manager') of the Temple over phone, which Radhakrishna, in turn, intimated the Police, who came to the Temple immediately.

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PW-1 has further stated that, Javara (PW-2) and Beeraiah (PW-3) told him that, in the night at about 2 o'clock, thieves had come and robbed the ornaments from the Temple. He also stated that he noticed the breaking of the hundi and spreading of the coins of the hundi. The door of the sanctum sanctorum was also broken and the ornaments kept in the almirah therein were also found missing. He informed the same to the

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Police and lodged a complaint in that regard, which complaint the witness has identified at Ex.P-1. He shown

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the places to the Police where the ornaments, almirah and

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the hundi were kept and explained what all have been lost. He also stated that the dead body of Allaiah was found on the floor covered with a rug. Blood stains were found near the dead body. The locks put to sanctum sanctorum were also found broken. The witness stated that from the spot, the Police seized clothes of Javara, Beeraiah and the deceased Allaiah. He also stated that the Police collected

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the other articles pertaining to the incident from the spot by drawing a scene of offence panchanama. This witness has identified the same at Ex.P-2.

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The witness (PW-1) has further stated that about

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three years after the incident, the Police had summoned him to their Police Station where he identified the articles robbed from the Temple in the incident. The witness has identified several of the ornaments with their description which are marked from MO-25 to MO-58.

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In his cross-examination, the alleged incident of dacoity has not been denied. On the other hand, the witness has given more information about the description of the jewels that were there in the Temple prior to the incident. He denied the suggestion that, MO-25 to MO-58 were not belonging to the Temple.

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Thus, the evidence of PW-1 that the incident of dacoity had taken place in the intervening night of the dates 08-08-2005 and 09-08-2005, in which incident, the watchman Allaiah was killed and other two persons Javara and Beeraiah were found tied by the dacoits and several of the gold and silver ornaments belonging to the Temple were found robbed in the incident, have all remained undenied.

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PW-2 (CW-2)- Javara - the watchman in

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Sri. Jwalamukhi Tripura Sundari Amma Temple has stated that, on the night of the date of the occurrence of the incident, himself and two other watchmen by names Beeraiah and Allaiah were sleeping in the Temple in front

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of Eswara Temple. In the midnight at about 1 o'clock, their hands and legs were tied and their faces were also tied with the shirt worn by them and they were made to lie on the ground. The witness stated that among the miscreants, he could able to see only one person and thereafter he lost his consciousness. The miscreants had assaulted him and caused injury to his left hand index finger. In the morning, the priest came, however, he could not yell and raise an alarm. Later, the priest, joined by the Police and others shifted them to the Hospital and got them the treatment. The miscreants had bolted the door from outside the Temple. The same was opened only after the Police came. Both himself and Beeraiah were confined by the miscreants inside the Temple.

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The witness further stated that when he and Beeraiah were brought to the K.R. Hospital at Mysuru, the Police had collected the clothes worn by them. The witness has identified his clothes which included a turkey towel, net baniyan, nikkar from MO-59 to MO-61. He also

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stated that the miscreants had robbed the articles from the Temple. He further stated that the Tahsildar had summoned him to jail to identify the accused. Accordingly, he has identified one accused in the jail. Stating so, he has identified accused No.1 in the Court and stated that he was the one who had tied his hands, legs and face and was identified by him in the jail.

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In his cross-examination, several portions of the alleged statement before the Police were read over to him. The witness stated that he has not given those statements to the Police. Those portions of the statements were marked as Ex.P-3(a), P-3(b) and P-3(c) respectively. He also stated that on the night of the incident, the deceased Allaiah, himself and Beeraiah were sleeping separately. Out of his experience, he could notice that when the incident took place, it was 2 o'clock in the midnight. At that time, there was no electricity supply and there was no light in the Temple.

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PW-3(CW-3) - Beeraiah, another watchman in Sri. Jwalamukhi Tripura Sundari Amma Temple has given his evidence similar to that of PW-2 - Javara. He has stated that, on the night of the incident, an incident of theft had taken place in the said Temple. On that night, himself, Javara and Allaiah were on night duty. After taking a round around the Temple, they had slept in the night. On that night, some one assaulted and tied his face with the rug which he was using and due to the said assault on his left shoulder, he sustained fracture injuries and lost his conscious. The next day morning when the Police and other devotees came to the Temple, he regained his consciousness. He was treated in the Hospital as an in-patient. He stated that he does not know whether his clothes were collected by the Police. Since he could not give any further details including the death of Allaiah except stating that he came to know that Allaiah was killed

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in the incident, at the request of the prosecution, he was treated as hostile and the prosecution was permitted to cross-examine him.

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In his cross-examination from the prosecution side, he denied a suggestion that he has given the statement before the Police as per Ex.P-4(a) and P-4(b). He also stated that he had not seen the miscreants on that night. However, he has identified the sweater and a blood stained net baniyan as belonging to him which were marked as MO-62 and MO- 63 respectively. He stated that those two clothes were given to him by the Police who had seized them by drawing a seizure panchanama. This witness was not cross-examined from the accused's side.

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From the evidence of this witness (PW-3), his statement that the incident of robbery had taken place in the Temple, in which process, he was assaulted by the miscreants causing injuries to him and another night watchman Allaiah was killed, remains un-denied.

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PW-4 (CW-5) - Kariyappa has stated that the deceased Allaiah was his uncle who was working as a watchman in Sri. Jwalamukhi Tripura Sundari Amma Temple. In the night of the date 08-08-2005, his said

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uncle died. He saw the dead body in between the Eshwara Temple and Sri. Jwalamukhi Tripura Sundari Amma Temple. He noticed injuries which appeared to have been inflicted by assaulting him with a chopper, from lower part of his left ear till his chest. His left hand was found cut. Left hand fingers were found sustaining the injuries. There was pool of blood clot where the dead body was found. The Police collected the sample of the blood and recorded his statement. The evidence of this witness remained un-denied, since he was not cross-examined from the accused's side.

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PW-5 (CW-10)- Basavaraju, a localite of Uttanahalli has stated that, it was in his presence the Police drew the inquest panchanama of the dead body of the deceased Allaiah as per Ex.P-5 and also drew a scene of offence panchanama as per Ex.P-2. During the said process, the Police had collected the articles from the spot from MO-1 to MO-24. He was also not cross-examined from the accused's side. As such, his evidence about the

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Police drawing the inquest panchanama on the dead body of the deceased Allaiah and drawing scene of offence panchanama as per Ex.P-2 and also seizing the articles from MO-1 to MO-24 stands un-denied and undisputed.

¶136

The panchas (PW-5 and PW-19) to the inquest panchanama at Ex.P-5, after describing the dead body and the injuries found on the dead body have opined that the nature of death was a murder.

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PW-6 (CW-17) – H.M. Shivalingegowda, former Executive Officer of Sri. Chamundeshwari Temple in his evidence has stated that, after hearing from the Police that the robbed articles of Sri. Jwalamukhi Tripura Sundari Amma Temple have been found by them, he, joined by priest P. Nagaraju (PW-8), Praveen Kumar (PW-1) and Ramesh (PW-7) had been to T. Narasipura Police Station and saw the gold Jewelleries. Priest P. Nagaraju, Praveen Kumar and Parupattegara Ramesh identified the articles. Stating so, the witness has

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identified MO-25 to MO-58 as the articles shown to him in the T. Narasipura Police Station.

¶140

PW-7 (CW-18) – Ramesh - the then Manager (Paarupattegara of Sri. Jwalamukhi Tripura Sundari Amma Temple) in his evidence has stated that, as a Manager of the Temple, it was his duty to receive the ornaments submitted to the Temple and after making necessary entries to that effect in the register, handing over the same to the priest, he has kept such register in his house, however, with respect to the robbed articles, he has stated that he does not have the list or the details about the robbed articles in the incident of dacoity. However, he stated that joined by priest P. Nagaraju (PW-8) and H.M. Shivalingegowda (PW-6), Praveen Kumar (PW-1) and one Sri. Mahadevaprasad, he had been to T.Narasipura Police Station and identified the articles shown to them as the ornaments belonging to the Temple.

¶141

In his cross-examination by the prosecution, a suggestion was made to this witness that the ornaments

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belonging to the Temple were robbed in dacoity on the date 09-08-2005 which the witness has admitted as true. He also admitted a suggestion as true that the chief priest P. Nagaraju and Praveen Kumar have identified the articles in the Police Station. He also admitted a suggestion that dacoity had taken place four years prior to the date of identification of the articles/ornaments. He has admitted a suggestion that on the date of identification of the articles only, his statement has been recorded by the Police.

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PW-8 (CW-19) - P. Nagaraju stated that he is the Chief Priest of Sri. Jwalamukhi Tripura Sundari Amma Temple and Praveen Kumar (PW-1), one Veerabhadrappa and one Linganna are other priests. He also stated that he has seen all the jewelleries that were robbed in a dacoity. He stated that, at the summoning of the Police from T. Narasipura, he, joined by PW-1, PW-6, PW-7 and others had been to the said Police Station and identified them.

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Stating so, the witness has identified MO-25 to

¶147

MO-58, stating that they were the very same articles.

¶148

PW-12 (CW-12) - Gnanesh stated that in August-2005, while he was on his way to Mysuru in his Scooter, near the lands of one Sri. Siddaiah, the Police who were present shown him and other public the coins of the denominations of 5/-, 1/-, 50 ps. and 25 ps. They seized those coins by drawing a seizure panchanama as per Ex.P-10. The witness has identified those coins collectively in the Court at MO-64.

¶149

The above evidence of PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7 and PW-8 have come uniformly about the occurrence of the incident of dacoity. However, as observed above, the accused no where have denied the occurrence of the incident of dacoity on the intervening night of the dates 08-08-2005 and 09-08-2005 at Sri. Jwalamukhi Tripura Sundari Amma Temple at S. Uttanahalli.

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The evidence of PW-1, PW-2, PW-3, PW-4 and PW-5 further go to show that in the said incident, a watchman by name Sri. Allaiah was killed, however, PW-1, PW-2, and PW-5 have opined it as a murder of deceased Allaiah by the miscreants who committed dacoity.

¶152

The evidence of PW-5 that the inquest panchanama as per Ex.P-5 was drawn in his presence has not been denied from the accused’s side, since he was not crossexamined. As observed above, the said inquest panchanama shows that watchman Sri. Allaiah was murdered by the miscreants on that intervening night.

¶153

The evidence of PW-6, PW-7 and PW-8 further go to show that, few of the articles at MO-25 to MO-58 identified by them from MO-25 to MO-58 were all the jewelleries belonging to the Temple.

¶154

The evidence of PW-1 that the Police having visited the place of the incident have recorded his complaint statement, is further corroborated by the evidence of PW-21 (CW-52) - Sri. Pandu, the then Police

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Sub-Inspector of complainant Police Station, who has stated that, on the date 09-08-2005, in the morning at 6 o’clock, hearing from the Station House Officer about the dacoity and murder in Uttanahalli Sri. Jwalamukhi Tripura Sundari Amma Temple, he immediately rushed to the place along with his staff and recorded the complainant statement given by one Sri.Praveen Kumar (PW-1) and identified the said complaint at Ex.P-1. PW-21 has also stated that he transmitted the said complaint through the Police Constable - Shivakumar to the Police Station.

¶157

The evidence of PW-1 and PW-21 about the complainant (PW-1) lodging the complaint stands further corroborated by the evidence of PW-18 (CW-38) Kareem Raovatar, the then Sub-Inspector of Police, Rural Police Station, Mysuru. He too has stated in his evidence that on the date 09-08-2005, in the morning, after receiving an information about dacoity and murder in the Temple of Sri. Jwalamukhi Tripura Sundari Amma Temple at S. Uttanahalli, he rushed to the spot where his other Police

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staff had arrived and complainant Praveen Kumar gave a written complaint to the Police Sub-Inspector - Sri. Pandu (PW-21/CW-52). He saw the watchmen by names Javara (PW-2) and Beeraiah (PW-3) having sustained injuries and one more watchman Allaiah having been murdered. He further stated that he brought the injured Javara and Beeraiah to K.R. Hospital and got them medical treatment and recorded their statements in the presence of the Doctor and handed over the statements to the Investigating Officer Sri. K. Kantharaju.

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His (PW-18's) evidence that he recorded the statements of PW-2 and PW-3 in the presence of the Doctor is corroborated by the evidence of PW-10 (CW-24) - Dr.B.S. Shivaprakash, the then medical post graduate student at K.R. Hospital, Mysuru. This witness has stated that the statements of Javara (PW-2) and Beeraiah (PW-3) were recorded on the date 09-08-2005 in his presence. He has identified the statements of Javara and Beeraiah at

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Ex.P-4 and Ex.P-5 respectively and his endorsement therein at Exs.P-3(d) and P-4(c) respectively.

¶164

PW-11(CW-25) - Dr. B. Nagaraju, the then Senior Specialist at the K.R. Hospital, Mysuru, has, in his evidence, stated that while he was in the night duty in K.R. Hospital at Mysuru, on the intervening night of the dates 08-08-2005 and 09-08-2005, the complainant Police brought two injured persons by names Javara and Beeraiah with the history of assault. He has stated that he examined them and noticed that the injured Javara had sustained five simple injuries including an incised wound in his left index finger, two contusions, one on left arm and another on right arm. He also stated that by examining another injured Beeraiah (PW-3), he noticed that he had sustained one incised injury on the top of his head and one

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more incised injury on the left shoulder. The X-ray report revealed that, the injured Beeraiah (PW-3) had fracture and dislocation of left shoulder bone. The witness has opined that the incised wounds found on both the injured

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could be caused if assaulted with a chopper. He has opined that the incised wound and fracture of shoulder bone was grievous in nature. This medical evidence of PW-11 (Doctor) corroborates the evidence of PW-2 and PW-3 that they were assaulted by miscreants in the incident. It also corroborates the evidence of PW-3 that due to the said assault, his left shoulder bone got fractured. Thus, the incident of dacoity, robbery of the jewelleries belonging to the Temple and the homicidal death of watchman Allaiah, stands proved.

¶168

Even though the inquest panchanama at Ex.P-5 opines that the death of Allaiah was a murder and several of the witnesses mentioned above including PW-1, PW-2, and PW-5 have called the said nature of the homicidal death of Allaiah as murder, still, the post-mortem report and the evidence of Doctor who conducted autopsy is required to be verified in that regard.

¶169

PW-26 - Dr. Ravi N., has stated that one Dr. Udayashankar was working with him at Mysore Medical

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College, however, he has taken his voluntary retirement. Stating that since he was acquainted with the handwriting and signature of said Dr. Udayashankar, the witness has identified the post-mortem report at Ex.P-22 and his signature at Ex.P-22(b) as the handwriting and signature of the said Dr. Udayashankar. Based on the post-mortem report, the said witness has stated that the said Dr. Udayashankar had conducted autopsy on the body of the deceased Allaiah.

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The following external injuries were noticed on the body of the deceased Allaiah:

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1. left hand was chopped off and it was separately brought along with the body.

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2. There was chop wound measuring 10 cm x 6 cm x 8 cm deep situated on the left side of the upper part of the neck extending from left mastoid region to chin cutting the muscles;

¶175

3. Superficial cut wound measuring 3 cm x 0.2 cm placed obliquely on the left arm was found;

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4. Superficial cut wound measuring 8 cm x

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0. 2 cm on the upper aspect of the left leg was also found.

¶180

The Doctor (PW-26) opined that all the injuries were

¶181

found to be ante-mortem and fresh in their nature and were caused by a heavy cutting weapon. The sub-dural haemorrhage and sub-arachnoid haemorrhage were found on the right parietal region. With these injuries, the Doctor who conducted autopsy has further opined that the death

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was due to shock and haemorrhage consequent to homicidal assault.

¶183

In his cross-examination, it was further elicited that, the injuries found on the deceased could have been caused by one person or more than one person, jointly, however, he did not specifically say with which weapon the said injuries could have been caused. This evidence of PW-26 and the post-mortem report at Ex.P-22 clearly go to establish that the death of the deceased Allaiah was not

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only homicidal but it has been caused by the act of one or more human beings.

¶186

Since the evidence of PW-1 the complainant, PW-2 injured and PW-3 the other injured mentions that it was the miscreants who committed dacoity and have killed watchman Allaiah, it stands proved that the deceased Allaiah was murdered in the incident of dacoity.

¶187

In the light of the above analysis, since the incident of dacoity on the intervening night of the dates 08-08-2005 and 09-08-2005 and robbery of the gold and silver articles belonging to Sri. Jwalamukhi Tripura Sundari Amma Temple at S. Uttanahalli and the murder of watchman Allaiah and inflicting injuries upon watchman Javara (PW-2) and another watchman Beeraiah (PW-3) by the miscreants have all stood established, the only question that remains for consideration is, whether the prosecution has proved that it was the accused No.1 and accused No.2 joined by the other accused who have

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committed the act of dacoity coupled with the murder of Allaiah?

¶190

In the process of proving that it was the accused who have committed dacoity and murder of watchman Allaiah in Sri. Jwalamukhi Tripura Sundari Amma Temple, the prosecution has relied upon the identification of the accused, more particularly, accused No.1 and accused No.2, in the Test Identification Parade(TIP) and the alleged recovery of the robbed articles at the instance of the accused.

¶191

PW-22 (CW-43) - Sri. P.S. Krishna Kumar, the then Circle Inspector of Police, Mysuru Rural Circle, has stated that, after taking up the further investigation in this matter from PW-23 (CW-42)- Sri.S.Mahesh Kumar, he obtained permission from the Deputy Superintendent of Police to hold a Test Identification Parade(TIP) and after corresponding with the Superintendent of Jail, Central Jail, Mysuru and the Chief Executive Magistrate, Mysuru, he arranged for a Test Identification Parade (TIP) by the

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Taluka Executive Magistrate, Mysuru. Accordingly, a Test Identification Parade (TIP) was conducted on the date 16-06-2009 by the Taluka Executive Magistrate who submitted the report of the Test Identification Parade(TIP) as per Ex.P-7. It is thereafter this witness has filed the charge sheet against the accused in the Court.

¶194

PW-9 (CW-26) - Smt. H.K. Geetha Krishna, the then Tahsildar and Taluka Executive Magistrate at Mysuru, in her evidence has stated that, in this case, at the request of the Investigating Officer, she has conducted the Test Identification Parade (TIP) on the date 02-06-2009, in which, four accused were to be identified by two witnesses by names Javara and Beeriah. The witness has explained the procedure that was followed by her in the Test Identification Parade(TIP) and holding the Parade in three rounds by changing the position and dress of the accused who were mixed with the other accused of similar physique. She has stated that in all the three rounds, PW-2 Javara identified accused No.1 whereas PW-3

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Beeraiah identified only accused No.1 in the third round, but failed to identify accused No.1 in the first two rounds.

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She stated that following the same procedure, she also conducted Test Identification Parades (TIPs) with respect to other accused also, i.e. Kumara @ Venkatesha (accused

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No.2/respondent No.2) Devaraju (accused No.3/respondent No.3) and Revanna (accused No.4/respondent No.4), however, neither Javara (PW-2) nor Beeraiah (PW-3) could able to identify any of these accused in any of the three rounds of identification. In that regard, she has given a report as per Ex.P-6.

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Learned Amicus Curiae for the respondents No.1 and 2 in her argument submitted that, since PW-2 - Javara in his evidence has stated that his face was tied with a shirt and there was pitch darkness in the Temple on that night and that there was no supply of electricity also and there was no light, in such a situation, his alleged identification of accused No.1 in the Test Identification Parade (TIP) creates a serious doubt. She also stated that

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PW-3 (Beeraiah) in his cross-examination has categorically stated that he has not seen any thieves on that night. Further, he has failed to identify the accused in the Test Identification Parade (TIP) also. As such, she submitted that the identification of the accused has not been proved by the prosecution.

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Learned High Court Government Pleader for the appellant - State in his argument did not whisper anything about the prosecution proving the identity of the accused, more particularly, the respondent No.1 and respondent No.2 herein (accused No.1 and accused No.2)

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I find more force in the argument of the learned Amicus Curiae, for the accused Nos.1 and 2, on this point. When according to PW-2 (Javara), who, according to PW-9 (the Municipal Tahsildar), has identified accused No.1 in the Test Identification Parade(TIP) and stated that the miscreants had tied his face with the shirt worn by him and also it was pitch dark on that night and since the offence is said to have been committed in the mid-night at

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2 o'clock, and also since there was no electricity supply or other light, it is not possible for a person to identify an unknown person (one of the alleged miscreants). As such, it is not safe to believe that PW-2 (Javara) could able to identify the accused No.1 in the Test Identification Parade (TIP).

¶206

With respect to accused No.2/respondent No.2 (Kumara @ Venkatesha), admittedly, neither PW-2 (Javara) nor PW-3 (Beeraiah) have identified him in the Test Identification Parades(TIPs). Moreover PW-3 (Beeraiah) has specifically and categorically stated that, he has not seen any thieves (miscreants) on the night of the incident.

¶207

Therefore, the identity of the accused in the Test Identification Parades (TIPs) would not come to the help/aid of the prosecution in proving its case.

¶208

The last piece of evidence through which the

¶209

prosecution has continued its attempt to prove the alleged

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guilt against the accused No.1 and accused No.2 is the alleged recovery of the robbed articles.

¶213

With respect to the articles of robbery, as analysed above, PW-1 (Praveen Kumar) has stated in his evidence that, though PW-7 (Ramesh) - the Manager of the Temple has stated about the incident, however, he could not give the details of the robbed articles.

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PW-20 (CW-44) - Sri. Mallikarjuna, the official of Sri. Jwalamukhi Tripura Sundari Amma Temple has also stated about the incident of dacoity in the Temple, however, he has also not given any details of the robbed articles.

¶215

PW-24 - Sri. Narasimhaiah T.D., the then Executive Officer of Sri. Chamundeshwari Temple at Mysuru, has stated that, Sri. Jwalamukhi Tripura Sundari Amma Temple, S. Uttanahalli, was coming within his jurisdiction. He has stated that after coming to know about the dacoity in the said Temple and visiting the said Temple, he verified the register maintained in their Office

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and through the said verification, he listed the details of the gold and silver ornaments that were robbed in the incident and handed over the same to the Police. He has identified the list of gold ornaments at Ex.P-24 and silver articles at Ex.P-25. His said evidence was not denied in his single sentence cross-examination from the accused's side.

¶218

Ex.P-24 and Ex.P-25 give a detailed list of gold and silver ornaments and articles said to have been lost from Sri. Jwalamukhi Tripura Sundari Amma Temple in the incident of dacoity. According to the prosecution, those articles are MO-25 to MO-58 and were recovered at the instance of the accused.

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Among the witnesses who were examined by the prosecution, regarding the alleged recovery of the robbed articles, the first witness is, PW-14(CW-39) - Sri. C.N. Mahadeva Naika, the then Police Sub-Inspector of T. Narasipura Police Station. In his examination-in-chief, the witness has stated that, on the night of the date

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13-11-2008 at about 11:30 p.m., while he, joined by his staff were in patrolling duty, he saw an assembly of six persons near Gunjanarasimhaswamy Temple in the midnight. He saw accused No.1, accused No.2, accused No.3 and accused No.4 and one Muniyappa and Krishna, among them, Revanna (accused No.4) ran way from the place. However, he, joined by his staff, could able to apprehend the remaining five accused. He has further stated that with their enquiry, he came to know that they had come to commit dacoity at Gunjanarasimhaswamy Temple. He has further stated that on the date 14-11-2008, he went along with the accused persons and the panchas to Mandya and joined the Circle Inspector of Police, to co-operate in the investigation.

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The witness (PW-14) further stated that, the accused stated that they had given the robbed articles at Mandya and Hullahalli, as such, they would show those articles, if they are taken there. Accordingly, the accused took this witness (PW-14) and the Investigating Officer to M/s.

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Mahaveer Jewellers at Mandya City. Accused Nos.1 to 4 requested the owner of the said Shop Sri. Lalithakumar and asked him to give back the gold and silver articles given to him by them some days ago as well the articles which were robbed about three years back at Uttanahalli. Accordingly, Lalithakumar produced 23 silver ornaments and four gold ornaments and few other pooja articles including gold plated articles, etc. The witness has further stated that, stating that the silver items were melted by him, he produced a silver ingot weighing 4 kgs. All those articles were seized by drawing a seizure panchanama as per Ex.P-13. The witness has identified those articles from MO-25 to MO-51 in the Court.

¶225

The witness (PW-14) has further stated that, thereafter, at the direction of the accused, they came to Hullahalli to a Shop called 'Naveen Pawn Brokers'. The accused Nos.1 to 4, identifying its owner - Sri. Sundarlal, asked him to give the silver and gold ornaments given to him by them about three years back. The said Sundarlal,

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identifying the accused and admitting the transaction, produced the gold and silver ornaments. Further, stating that some of the gold ornaments were melted by him, he produced a gold ingot weighing 62.63 grams. Stating that he has melted the silver ornaments, he produced a silver ingot weighing 5 kgs. However, the witness has stated that the said ingots were not pertaining to this case. The witness has identified a panchanama at Ex.P-14 stating that it was the panchanama drawn by the Investigating Officer while seizing those articles.

¶228

The denial suggestions made to this witness (PW-14) in his cross-examination from the accused's side were not admitted as true by this witness.

¶229

The next witness in the series of alleged recovery is, PW-15 (CW-20) - Sri. Veeresh. This witness has stated that the T. Narasipura Police had summoned him to the Police Station on the date 14-11-2008 on the

¶230

pretext that he is required to be present for a panchanama. The Police took accused No.1 to accused

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No.4, another pancha and himself to 'M/s. Mahaveer Jewellers' at Mandya. The accused Nos.1 to 4 spoke to the owner of the said Shop and the said owner gave the robbed articles of the Temple. The witness stated that he cannot say what those items were and their numbers, however, he stated that MO-25 to 28 and MO-29 to MO-51 were the articles given by the Shop owner. He also stated that the panchanama as per Ex.P-13 was drawn in his presence.

¶233

This witness (PW-15) further stated that, thereafter in the afternoon, they all went to a Shop called 'Naveen Pawn Brokers' at Hullahalli. The owner thereof, who, according to this witnesses, is accused No.5. At the request of accused No.1 to accused No.4 and after talking with the Police, the accused No.5 produced some gold and silver articles which were seized by the Police. The witness has identified MO-52 to MO-56 as those articles.

¶234

In his cross-examination, he has stated that looking at the accused and at the mere asking of the accused that

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they had given the articles to them about three years back, the Shop owners produced those articles before them.

¶237

The last witness in the series of recovery is, PW-27 (CW-40) - Kumaraswamy, the then Circle Inspector of Police of T. Narasipura. This witness in his evidence has stated that, on the date 14-11-2008, PW-14 - the Police Sub-Inspector produced before him five accused persons. At the enquiry, the accused stated that they had committed dacoity in S. Uttanahalli Temple and have murdered a person there. He recorded the voluntary statement given by each of the accused. Stating so, he

¶238

has identified the voluntary statements said to have been

¶239

given by the accused No.1 and accused No.2 at Ex.P-15 and Ex.P-16 and got marked the relevant portions in them at Ex.P-15(b) and P-16(b) respectively. He has further stated that, thereafter, he summoned the panchas to the Police Station and joined by the panchas, his staff and accused Nos.1 to 3, went to M/s. Mahaveer Jewellers,

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where the owner of the Shop Lalithakumar who is accused No.6 identifying the other accused has produced the articles purchased by him and the ingots said to have been formed after melting the ornaments purchased from the accused persons. He seized them by drawing a seizure panchanama at Ex.P-13. He has identified those articles at MO-25 to MO-51.

¶242

The witness (PW-27) has further stated that thereafter the accused took them to Hullahalli of Nanjanagudu. There, they took them to a Shop called 'Naveen Pawn Brokers and Garments' and identified its owner Sri. Sundarlal and asked him to produce the ornaments sold to him earlier. The witness further stated that the said Sundarlal, who is accused No.5 produced the articles, which he seized by drawing a seizure panchanama at Ex.P-14. He has identified those articles at MO-52 to MO-58.

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In his cross-examination, this witness has stated that he did not make use of any of the neighbours of his Shop as panchas to the alleged recovery panchanama.

¶245

A careful perusal of the evidence of PW-14, PW-15 and PW-27 would go to show that, PW-27 is the Investigating Officer who claims to have recovered the articles at the instance of the accused including accused No.1 and accused No.2 herein and PW-14 and PW-15 were said to have accompanied him in the process.

¶246

The analysis of the evidence made above would go to show that, those three witnesses (i.e.PW-14, PW-15 and PW-27) have not specifically stated in explicit, clear and specific words of the alleged voluntary statements of accused No.1 and accused No.2 in the same manner as were made by them in Exs.P-15(b) and P-16(b) respectively.

¶247

Further, PW-27 - the Investigating Officer, with respect to the alleged recovery of the articles at MO-25 to MO-51 from a Shop at Mandya, has not stated that the

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accused asked the Shop owner i.e. accused No.6 - Lalithakumar to produce the articles said to have been sold by them to him. On the other hand, the evidence of this witness go to show that merely because the accused identified the said Lalithakumar and stated that they had sold the robbed articles to him, he proceeded to produce those articles at MO-25 to MO-51.

¶250

With regard to the above evidence of the witness (PW-27), still there are serious doubts which are as follows:

¶251

(i) Firstly, it is difficult to believe that, merely looking at the accused after several years, he (accused No.6- Lalithakumar of Mahaveer Jewellers) produced several of the articles from MO-25 to MO-51 before them.

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(ii) Secondly, without even knowing which are all the articles that were sold to him, he (accused No.6) could able to produce those articles including the silver ingot. Therefore, the said production of MO-25 to MO-51 was not

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at the specific request made by any of the accused including accused No.1 and accused No.2.

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(iii) Similarly even the alleged second recovery at Hullahalli from accused No.5 (Sundarlal of Naveen Pawn Brokers and Garments), is also without any details of the articles/ornaments given to him by any one, much less by the present accused.

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(iv) Therefore, when the incident of dacoity is said to have taken place on the date 09-08-2005 and alleged recovery is said to have been made on the date 14-11-2008, which is more than three years and three months after the occurrence of the incident, it is highly unbelievable that without there being any document of sale or description of the items, that too, when the alleged articles sold were large in their numbers, the articles are said to have been produced by the Shop owners without seeking any details of the ornaments alleged to have been sold to them. Added to these, the Investigating Officer (PW-27) also has not given any details in his evidence as

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to which are all the articles that were produced by the said Lalithakumar (accused No.6) and Sundarlal (accused No.5). He has only stated that he identifies those articles from MO-25 to MO-58. However, having the case file with him and also Ex.P-24 and Ex.P-25 before him, which were giving the list of all the articles also, the witness (PW-27) was too casual in leading his evidence wherein he has not given the minimum required details about the articles that were asked by the accused and produced by accused No.5 and accused No.6. Therefore, the evidence of PW-27 is not safe to belief regarding recovery.

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The evidence of PW-14 and PW-15 is also not without any doubts in them. Even according to them, merely because the accused were said to have asked the owners of the Shops to give the articles given/sold to them about three years back as the articles robbed by them in the dacoity, the owners of the said Shops were said to have produced the said articles.

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PW-15 has further stated that before producing those articles, the owner of the Shop had some discussion with the Police. It is only thereafter they produced the articles.

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Thus, even according to these two witnesses also, after lapse of more than three years, merely at the asking of the accused, the Shop owners themselves could identify large number of gold and silver articles and produce the same before them.

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Further, according to PW-14, the accused asked the Shop owners stating that they had given/sold the articles to them as robbed articles. It is not safe to believe that while selling those articles, the accused had stated that they were robbed articles and knowing that they were the robbed articles, the Shop owners had taken the risk of purchasing such a large quantity and numbers of articles.

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To the height of the above doubts crept in the case of the prosecution regarding recovery, all these three witnesses, i.e. PW-14, PW-15 and PW-27 have identified the articles from MO-25 to MO-58 as the articles and

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PW-1, PW-6 and PW-8 have also identified those articles. Interestingly, among those articles, MO-57 and MO-58 are the gold and silver ingots respectively. Admittedly, the robbed articles did not include any gold or silver ingots. Even according to the prosecution, the ornaments were melted and converted into ingots. If that were to be the case, then, how come PW-1, PW-6 and PW-8 could identify them as the robbed articles and as belonging to Sri. Jwalamukhi Tripura Sundari Amma Temple, is difficult to believe.

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Learned High Court Government Pleader for the appellant - State, relied upon a judgment of the Hon'ble Apex Court in RAJU MANJHI's case (supra) , wherein the Hon'ble Apex Court was pleased to observe with respect to Section 27 of the Evidence Act, 1872, that the confession of the accused made in the Police Custody which reveals some information leading to the recovery of the incriminating material or discovery of any fact concerning

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the alleged offence, such statement can be proved against the accused.

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In the instant case, as observed above, PW-27 - the Investigating Officer could not say as to what were the specific words or specific statements in the voluntary statements given by the accused before him. Further, the alleged recovery based upon the alleged voluntary statements also does not inspire any confidence in the Court to believe in them as recoveries at the instance of the accused. Thus, the prosecution could not able to prove the alleged recovery at the instance of the accused.

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The accused No.1 and accused No.2 had also taken the defence of alibi . Accused No.1 - Lakshmana @ Ouranga got himself examined as DW-1, who, in his evidence, has stated that accused No.2 Kumara @ Venkatesha is his son. He further stated that, from the year 2004 till the year 2006, with respect to another Criminal Case, both himself and his son were in Judicial

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Custody at Tumakuru Prison. After completion of the trial in a Court at Kunigal, they were acquitted of the alleged offences. Stating so, he has produced the certified copy of the order sheet (first day's and last day's) and also the judgment in C.C.No.359/2005, in the Court of the learned Additional Civil Judge (JD) and JMFC, Kunigal at Exs.D-1 and D-2 respectively and a certified copy of the judgment in Sessions Case No.83/2009 and dated 23-01-2010 on the file of the learned Presiding Officer, Fast Track CourtII, Mysore, at Ex.D-3. He also got examined one

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Sri. K.S. Samiulla, the Superintendent of the District Jail, Tumakuru, as DW-2. The said witness has stated that his predecessor in office, at the request of the counsel for the

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accused, had issued the details of the prisoners with respect to accused No.1 - Lakshmana, S/o. Ramaiah and accused No.2 - Venkatesha S/o. Lakshmana, which he has identified at Exs.D-4 and D-5 respectively. The witness

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has stated that as per the jail records, accused No.2 (Venkatesha @ Kumara) was admitted to their jail as Under Trial Prisoner (UTP) with UTP 1198, on the date

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18-08-2004 and the accused No.1 Lakshmana @ Ouranga

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was admitted to their jail on the date 28-07-2005. Both of them were released from their jail on the date 30-10-2006. He further stated that in the intervening period, neither of them were released on bail.

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The order sheet at Ex.D-1 though shows that

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the present accused No.1 and accused No.2 were produced under body warrant ordered on the date 07-12-2004, however, the said order sheet is not continuous in its dates and pages and reflects only the first page and last two pages of the order sheet and that the intervening pages are missing. Thus, it does not clearly show that, as on the date of the incident in the instant case i.e. on 09-08-2005, the accused No.1 and accused No.2 were in Judicial Custody. However, prior to the said date and subsequent to the said date, they were shown to be in Judicial Custody only.

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Ex.D-2 in the title sheet of the judgment in C.C.No.359/2005, which shows that the accused No.3 and accused No.5 respectively therein who are accused No.2 and accused No.1 respectively in the present case were arrested on the date 07-12-2004. Paragraph 4 of the said judgment (in C.C.No.359/2005) also mentions that though the accused were granted bail except accused No.1, no other accused secured/utilised the benefit of bail by furnishing surety. From the said assertion in the judgment only, it can be inferred that, from the date 0712-2004 till 30-10-2006, when the judgment came to be pronounced as per Ex.D-2, the present accused No.1 and accused No.2 were in the judicial custody. As such, as per the said judgment also, the accused No.1 and accused No.2 could not have been outside the Jail on the date 0908-2005, which is the date of the incident of dacoity in the case on hand.

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More importantly, the evidence of DW-2, which

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is none else than of a public servant and a Jail Superintendent himself has stated that as per the jail records as on the date 09-08-2005, both accused No.1 and accused No.2 herein were in the District Prison, Tumakuru, as Under Trial Prisoners. They were released from jail only on the date 30-10-2006. Therefore, the plea of alibi taken by the accused stands proved. Consequent to proving the plea of alibi , there arises a doubt about the identification of the accused in the Test Identification

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Parades (TIPs). Thus, it has to be necessarily held that, in view of the analysis of the evidence made above, the prosecution has utterly failed to prove the alleged guilt against the present accused No.1 - Sri. Lakshmana @ Ouranga, who is respondent No.1 herein and present accused No.2 - Sri. Kumara @ Venkatesha who is respondent No.2 herein, for the alleged offence of dacoity and murder of watchman Allaiah, in the instant case.

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Before concluding, we are making an

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observation about the investigation and filing of the charge sheet in this matter. The Investigating Officer has alleged that the present respondent No.1 and respondent No.2 who are accused No.1 (Lakshmana) and accused No.2 (Kumara @ Venkatesha) have committed the alleged offence punishable under Section 396 of the IPC. However, the discussion made above shows that as on the date of the offence which was on the date 09-08-2005, both of them were in the Prison at Tumakuru as Under

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Trial Prisoners. Exhibits D-1 to D-5 coupled with the evidence of DW-2 - Sri.K.S. Samiulla, who is none else than the Superintendent of Jail at Tumakuru Prison has shown that both respondent No.1 - Lakshmana (accused No.1) and respondent No.2 - Kumara @ Venkatesha (accused No.2) were admitted in their Jail at the relevant point of time. The evidence of a public servant (DW-2) - Sri.K.S. Samiulla cannot be ignored. Since analysing the above evidence, this Court has accepted the defence of alibi pleaded by the accused, it shows that the

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Investigating Officer has committed a serious error in showing the present respondent No.1 (accused No.1) and respondent No.2 (accused No.2) as among the alleged culprits in committing the alleged offence punishable under Section 396 of the IPC. Therefore, it is a fit case where the Director General and Inspector General of Police of the Karnataka State Police, Bengaluru, would look into the matter and take appropriate action against the erring Investigating Officer/Officers. As such, the registry to transmit a copy of this judgment to the Director General and Inspector General of the Karnataka State Police, Bengaluru, for doing needful in the matter.

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Since the Sessions Judge's Court analysing the evidence placed before it in its proper perspective, has passed impugned judgment of acquittal, acquitting the present accused No.1 and accused No.2 with the other accused No.3 and accused No.4 for the offence punishable under Section 396 of the IPC, we do not find any reason to interfere in it.

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Accordingly, we proceed to pass the following:

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O R D E R

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[i] The present Criminal Appeal

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No.1242/2016 stands dismissed ;

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[ii] The accused No.1 - Lakshmana @

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Ouranga, Son of late Ramaiah, Aged about 61 years, R/o. Kalkunike Village, Hunsur Taluk, who is presently in judicial custody is ordered to be released immediately, provided he is not required to be detained in custody in any other case.

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The registry to intimate the concerned Jail

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authorities, immediately.

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The Court, while acknowledging the services rendered by the learned Amicus Curiae - Smt. K.M. Archana, for the respondents No.1 and 2 (accused), recommends an honorarium of a sum of not less than `6,000/- payable to her by the Registry.

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