1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1476-1477 OF 2018

VENKATESH @ CHANDRA & ANR. ETC. …Appellants

VERSUS

STATE OF KARNATAKA …Respondent

J U D G M E N T

UDAY UMESH LALIT, J.

1. These appeals by special leave filed by original accused Nos.1 to 4 are

directed against the common judgment and order dated 04

th

September 2017

passed by the High Court

1

in Criminal Reference Case No.14 of 2010; and in

Criminal Appeal No.799 of 2011 and Criminal Appeal No.637 of 2012.

2. The appellants along with original accused Nos.5 to 9 were tried by

the Trial Court

2

in Sessions Case No.443 of 2001 and Sessions Case No.55

of 2004 for having committed offence punishable under Section 396 of the

IPC

3

. Accused No.9 died during the pendency of the trial and the

proceedings against her stood abated. The Trial Court

2

acquitted original

accused Nos.5 to 8 by its judgment dated 17.09.2010 but convicted the

1

The High Court of Karnataka at Bengaluru

2

XXXIV Additional City Civil and Sessions Judge (Special Court), Central Prison Premises, Bengaluru

3

The Indian Penal Code, 1860

2

appellants for having committed offences punishable under Section 396 read

with Section 34 of the IPC

3

. By a subsequent order of punishment dated

30.09.2010, the Trial Court imposed death sentence upon all the appellants

for the offence committed by them.

3. This resulted in Criminal Reference Case No.14 of 2010 for

confirmation of death sentence before the High Court. The convicted

accused, namely, the appellants herein also preferred Criminal Appeal

Nos.799 of 2011 and 637 of 2012 in the High Court. By its judgment and

order presently under challenge, the High Court did not find sufficient

reasons to affirm the death sentence. It found that the appellants were guilty

of having committed the offence under Section 394 of the IPC

3

and

sentenced them to suffer life imprisonment.

4. The instant proceedings arise out of Crime No.874 of 1999 registered

pursuant to FIR dated 28.10.1999 lodged with Vijayanagar Police Station,

Bengaluru. The reporting made by one Dr. Prakash Vishnu was:-

“I, Dr. Prakash Vishnu, hereby inform that today at about 9.15

AM, I left home as usual to attend my work in Bowring

Hospital. At that time, my father and mother both were alright.

In our house only myself, my father and mother are staying.

Each one of us are keeping separate key with us. My father is

working as an Imposer in Indian Express. My mother runs a

Novelty Store near our house.

Today afternoon when I returned home after work, some

burnt smell was coming from kitchen. I called my mother 2-3

times. There was no reply. I myself went and opened the door,

in kitchen, stove was on. I left it as it is and open the room door,

when I opened room door, I saw my mother lying in blood pool.

Pan was also lying there, hoping that she is alive, I tried

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Resuscitation. But her heart beat was stopped (I did not get

pulse). Entire body was turned bluish. Tongue was stretched

out. I was very much shocked and screamed very loudly. Then

neighboring people came and gathered there. I humbly request

you to kindly trace out the culprits who have murdered my

mother and take suitable action against them. Yesterday, my

father had night duty and he was back at 6.00AM.”

Accordingly, crime under Section 302 of the IPC was registered

against unknown persons.

5. During investigation, statements of the mother, sister and husband of

the deceased were recorded, who stated that the deceased normally used to

wear certain gold ornaments which were stolen as part of the transaction.

The Inquest Report, later marked as Exh.P-2 conducted on the body of the

deceased also showed injuries on the ear, presumably caused while taking

away the earrings.

6. The post-mortem on the body was conducted by Dr. S.B. Patil and the

Post-Mortem Report, later marked as Exh. P-14 indicated that the deceased

had suffered 13 injuries. According to the medical opinion, injuries 1 to 10

were possible by an iron road while injuries 11-13 were inflicted by a knife.

The external injuries noted in Post-Mortem Report were as under: -

“1. Lacerated wound over right parietal region 7 cm above right

ear measuring 3cm x 1cm bone deep;

2. Lacerated wound over right parietal 2.5 cm above injury No.

(1) measuring 5 cm x 2 cm bone deep.

3. Lacerated wound over inter parietal region 2 cm to left of

injury (2) measuring 2 cm x 0.5 cm.

4. Lacerated wound over left parietal region measuring 5cm x 3

cm x skull cavity deep through which brain matter is draining

out. It is situated 10 cm above left ear.

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5. Lacerated wound 4 cm above left ear measuring 10cm x 3cm

x skull cavity deep situated in the fronto parietal temporal

region.

6. Lacerated wound 1cm above left ear in the temporal region

measuring 4cm x 1cm x skull cavity deep.

7. Lacerated wound 4cm behind injury No.5 in left side of

occipital region measuring 4cm x 1.5.cm x bone deep.

8. Lacerated wound in the mid occipital region measuring 3 cm

x 1cm x bone deep.

9. Lacerated wound over right parietal-occipital region situated

7cm behind and above right ear.

10. Lacerated wound over left occipital region measuring 1.5 cm

x 1cm x bone deep.

11. Incised wound over right ear lobule measuring 1cm x 0.5 cm

x 0.5 cm.

12. Incised wound over left ear lobule measuring 1cm x 0.5 cm

x 0.5 cm.

13. Incised wound over palmar aspect of left thumb distal

phalanyx measuring 3 cm x 2cm x muscle deep.”

The Post-Mortem Report further stated:

“3. On reflection of scalp blood extraverted all over-scalp skull-

left frontal bone, left partial bone, left temporal bone, and

occipital bone fractured into multiple pieces and blood

extraverted at fracture site. Bones of middle cranial and

posterior cranial fosse fractured into multiple pieces and blood

extraverted at fracture site.

4. Membrane-lacerated at fracture sites.

5. Brain covered by subdural and subarachnoid hemorrhage all

over base and surface and is partially drained out on left side.”

7. More than 15 months after the incident, the appellants were arrested

on 01.02.2001 by the police in connection with said crime. Soon after their

arrest, voluntary statements of the appellants were recorded by the

Investigating Officer. These four statements marked as Exh. P-21, P-22, P-

23 and P-24 in the trial, as extracted in the judgment of the Trial Court were:

“27. The lst Accused has given his voluntary statement as

hereunder:

"Krishnadu and the ladies Lakshmi, Venkata Lakshmi,

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Padma in the guise of begging food and water to the

children got open the door of a house at Moodalapalya and

went away. Immediately all of us rushed inside the house.

My brother-in-law Venkatesh alias Ramesh was waiting at

the door of the house. We dragged and took the woman

who was present in the said house and took her inside the

house. I caught hold of her closing her mouth,

Munikrishna assaulted to the back of her head with the rod

he had, Chikkahanuma pierced with the knife he had to the

ear of said woman, I snatched one pair of ear rings (vole),

gold bangles which wore on the body of said lady.

Munikrishna snatched two chains from her neck,

Nallathimma took one ring and one pair of silver leg chain

and he handed over the leg chain to Lakshmi, who is the

wife of Doddahanuma. We have thrown the iron rod and

knife to the fence erected by the side of drainage therein. I

have sold the ornaments stolen by me to a shop at Raja

market. If I am taken there, I will show the spot where we

committed murder, and we will show the place where we

have thrown the knife and the rod. And we will show the

shop in which we sold the jewelleries and get the said

articles", and accordingly he got the said articles through

the Mahazar at Ex.P-21.

28. The. 2nd accused has given his voluntary statement as

hereunder:

"Krishnadu and the ladies Lakshmi, Venkata Lakshmi,

Padma in the guise of begging food and water to the

children got open the door of a house at Moodalapalya and

went away. Immediately all of us rushed inside the house.

My brother-in-law Venkatesh alias Ramesh was waiting at

the door of the house. We dragged and took the woman

who was present in the said house and took her inside the

house. My elder brother caught hold of her closing her

mouth, and I assaulted to the back of her head with the rod

I had, Chikkahanuma pierced with the knife he had to the

ear of said woman, my elder brother snatched one-pair of

ear rings (vole), gold bangles which wore on the body of

said lady, ‘and I snatched two chains from her neck,

Nallathimma took one ring and one pair of silver leg chain

and he handed over the leg chain to Lakshmi, who is the

wife of Doddahanuma. We have thrown the iron rod and

knife to the fence erected by the side of drainage therein. I

have sold the ornaments stolen by me to a shop at Raja

market. If I am taken there, I will show the spot where we

committed murder, and we will show the place where we

have thrown the knife and the rod. And we will show the

shop in which we sold the jewelleries and get the said

articles", and accordingly he got the said articles through

the Mahazar at Ex.P-22.”

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29. The 3rd accused has given his voluntary statement as

hereunder:

"Krishnadu and the ladies Lakshmi, Venkata Lakshmi,

Padma in the guise of begging food and water to the

children got open the door of a house at Moodalapalya and

went away. Immediately all of us rushed inside the house.

Venkatesh alias Ramesh was waiting near the door of the

house. We dragged and took the woman who was present

in the said house and took her inside the house. I caught

hold of her closing her mouth, Munikrishna assaulted to

the back of her head with the rod he had, Chikkahanuma

pierced with the knife he had to the ear of said woman,

Venkatesh alias Chandra snatched one pair of ear rings

(vole), gold bangles which wore on the body of said lady.

Munikrishna snatched two chains from her neck, and I

took one ring and one pair of silver leg chain and handed

over the leg chain to Lakshmi, who is the wife of

Doddahanuma. We have thrown the iron rod and knife to

the fence erected by the side of drainage therein. I have

sold the ornaments stolen by me to a shop. at Raja market.

If I am taken there, I will show the spot where we

committed murder, and we will show the place where we

have thrown the knife and the rod. And we will show the

shop in which we sold the jewelleries and get the said

articles", and accordingly he got the said articles through

the Mahazar at Ex.P-23.

30. The 4th accused has given her voluntary statement as

hereunder:

"Myself, Padma, Venkatalakshmi and Krishnadu

came identifying a house. One day in the guise of

requesting for water got open the door, immediately the

male persons Venkatesh, Munikrishna, Nallathimma,

Venkatesh alias Ramesh, Krishnadu rushed inside the

house, we left said place. Thereafter the male persons

returned and informed us that we assaulted and murdered

a lady in the said house and snatched away the jewelleries

wore by the said lady on her body, and Nallathimma gave

one pair of silver leg chain which was brought from the

said house. Further, he also paid the amount for my

expenditure. I wear the leg chain given to me, she stated

that if she is taken there she will show the house which

identified by her and shown to the male persons. I have

produced before you the silver leg chain given to me by

Nallathimma" and she handed over the same through

Mahazar at Ex.P.24””

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8. On 6.2.2001, Voluntary Statements of the appellants were recorded by

the Investigating Officer on a DVD, later marked as Exh. P-25 to P-28 in the

trial. The discussion with regard to said DVD by the Trial Court is in

paragraph 35 of its judgment. It appears that what was recorded on said

DVD was played and published in a program named “Sutta Mutta” by

Udaya TV.

9. It must be stated that according to the prosecution, a gold ring and a

pair of silver anklets were recovered from the person of accused No.4-

Lakshmamma alias Lakshmi at the time of her arrest. More than seven days

after the recording of their voluntary statements, i.e. on 07.02.2001 and

08.02.2001, three of the appellants allegedly led the Investigating team to a

jewellery shop named Sathyanarayana Jewellery Mart owned by one

D.Janardhana Shetty, as a result of which, following jewellery items were

recovered:-

On 07.02.2001

1. accused No.1-

Venkatesh

alias Chandra

Recovery of three gold bangles

and a pair of gold ear studs.

2. accused No.2-

Munikrishna

alias Krishna

Recovery of one gold chain with

two lines mangalya and gold

necklace.

On 08.02.2001

1. accused No.3-

Nallathimma

Recovery of 13 gold and silver

articles.

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10. On 09.02.2001, accused No.2 Munikrishna allegedly led the

Investigating Team to an open space near a drainage which resulted in

recovery of an iron rod and a knife (which were marked as MO-16 and MO-

17 in the trial) in the presence of a panch witness, named Manjunatha

examined as PW-12 in the trial. The relevant portion with regard to such

recovery dealt with by the Trial Court was as under:-

“36. In order to prove regarding seizure of articles utilized for

commission of offence, the prosecution has examined one

Manjunatha as PW-12 in the above case as the witness who was

present at the time of seizure of the iron rod and knife said to

have been utilized by the accused for committing offence and as

the person who has signed the Mahazar at the time of seizure.

On observing the said evidence the 2nd accused has taken out

the M.O.16 and 17 the iron rod and knife from the ditch situated

by the side of an open space near the drainage in the 5th Cross

Shanthaveri Gopala Gowda Nagar, Moodalapalya and the same

was seized by the police, and at that time have also conducted

Mahazar as per Ex.P-11. He identified the Ex.P-11 (A) as his

signature, and stated that M.O.16 and 17 are the weapons taken

out by the Accused Munikrishna.

11. MO-16 and MO-17 were sent for chemical examination and both the

articles were found to be stained with human blood. However, in terms of

the FSL Report, later marked as Exh. P-10, blood group could not be

determined and the tests were inconclusive. The recovered gold ornaments

were not subjected to any Test Identification Parade but were stated to have

been identified by the relations of the deceased in police station.

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12. After completion of investigation, the accused were sent up for trial

and tried by the Trial Court in Sessions Case No.443 of 2001 and 55 of

2004. In support of its case, the prosecution relied upon testimony of 24

witnesses and it marked 29 documents, namely, Exh. P-1 to P-39 and

produced material objects MO-1 to MO-17. The gist of the testimony of the

witnesses was: -

A. PW-1, Shri Vishnu, husband of the deceased deposed that after he had

returned home, he found the deceased lying in a pool of blood and in

the same night he came to know that gold mangalya chain, gold

necklace, three gold bangles, a ring, pair of silver anklets etc. which the

deceased used to wear were missing.

B. PW-2, Sharadamani, sister of the deceased did not support the case of

the prosecution that she had gone to the police station and identified the

gold ornaments. She was declared hostile.

C. PW-3, PW-7 and PW-22 were panch witnesses to Inquest Report

Exh.P-2 while PW-4, R. Mohan Kumar was panch witness to Spot

Mahzar Exh. P-3. PW-5, Babu was panch witness to the search and

seizure of the gold ring and the pair of silver anklets recovered from the

person of accused No.4 at the time of her arrest. PW-6, Rudra Prasad

was the panch witness to Mazhar Exh.P-6 in terms of which accused

nos.1 to 4 had led the investigating team to the house of the deceased

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where the murder was allegedly committed.

D. PW-10, Suresh Gaonkar, Director, Forensic Laboratory, Kalaburagi

deposed that he had examined MO-16 iron rod and MO-17 knife and

had found the same to be stained with human blood and that he had

given opinion as per Exh. P-10.

E. PW-11 and PW-13 were panch witness to the seizure of ornaments at

the instance of accused nos.1, 2 and 3, while PW-12 Manjunath was the

panch witness to the recovery of MO-16 iron rod and MO-17 knife.

F. PW-14, K.H. Manjunath, Professor, Forensic Medicine, Victoria

Hospital, Bengaluru was examined to prove the signature of the author

of Exh. P-14 Post-Mortem Report as Dr. S. D. Patil who conducted the

post-mortem examination was no more.

G. PW-18, Smt. Jayamma, mother of the deceased also failed to identify

the ornaments stated to be belonging to the deceased and produced by

the prosecution.

H. PW-23, D. Janardhan Shetty, receiver of gold ornaments from accused

no.1 to 4 deposed about the recoveries effected on 7

th

and 8

th

of

February 2001, as tabulated in paragraph 9 above.

I. PW-24, N. Chalapathi, Deputy Superintendent of Police, the

Investigating Officer deposed about the steps taken during investigation

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including the recording of voluntary statements of the appellants Exh.

P-21 to P-24. He further stated that on the evening of 06.02.2001, he

had got the statements of the appellants recorded through video-

recording on DVDs, marked as Exh. P-25 to P-28. He also produced a

chart Exh.P-29 giving details about the cases pending against the gang

of which the appellants were alleged to be members. However, no

documents either in the form of chargesheets, depositions or orders

were produced. Even no question regarding Chart Exh.P-29 was put to

the appellants in their examination under Section 313 of the Code.

13. The Trial Court accepted the case of the prosecution against the

appellants i.e. accused Nos.1 to 4 relying inter alia on the voluntary

statements Exh. P-21, P-22, P-23 and P-24 and the DVD Exh. P-25 to P-28.

The relevant discussion on the point was:-

“31. On noticing all these factors, it is pertinent to note that if at

all the accused No.1, 2 and 3 had not sold either M.O.-6 To 10

or other articles to PW-23, why the PW-23 was giving statement

before the Court that the accused had sold the said articles to the

him. If at all he wanted to give false evidence or he wanted to

give evidence with an intention to harass the accused, then there

should be hatredness, jealousy and ill-will against them.

However, the defense Advocate has not made any such

suggestion of hatred, jealousy or ill-will against the accused or

any proof in that regard. Further, on observing the statement

made by him that the PW-1 has identified that the said article

belonged to his wife, and that the PW-23 has stated that the

accused No.1, 2 and 3 have sold the said article to him, and then

on their request he has returned the same, and that the PW-11

was present at that time, and that the PW-12 Rangaswamy was

present while he got seized the said article, and similarly,

according to the voluntary statement of Ex.P-24 the 4th accused

Lakshmamma out of the jewellers smuggled having wore one

pair of a ring (vole) and one pair of leg chain and a saree, she

has handed over the said articles to the police. She admitted

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these factors in her voluntary statement. Further, the said articles

are got seized before the witness PW-5 Babu through Mahazar

at Ex.P-5 conducted in that regard. The said Babu also clarified

this fact in his evidence stating that the police through a Woman

Constable in their station made arrangement for her to wear

another saree, and out of the articles stolen by her got seized the

saree, ear ring (vole) and leg chain, and M.O.5 is the leg chain

pertaining to this case. The accused Lakshmi has stated that her

Associate Nallathimma stolen and handed over the said articles

to her, and she identified the Ex.P-5 (a) as her signature. During

her cross-examination she has stated that on that day the

Inspector Chalapathi had called her to the Station, showing the

accused in the station stated that she has committed robbery,

some articles were kept on the table and on seeing them she

stated that he has conducted Mahazar and further stated that

during her re-examination the M.O.5 and other articles were

seized from the accused Lakhsmi only.

32. The accused have not clarified in any manner before the

Court as to how the said articles came to their possession and

they have not proved that the said articles belong to them, and

the statement and voluntary statement made regarding the

articles kept and handed over is just and proper according to

Section 27 of Evidence Act and the Court has to perform the

same.

33. Furthermore, Lakshmamma Venkatesh alias Chandra,

Munikrishna, Doddahanuma (Chinnappa and Doddahanuma

who said to be not the accused in this case) having given their

voluntary statement in the D.V.D. at Ex.P-25, wherein they have

narrated about this offence.

34. In 313 Statement to the accused Doddahanuma,

Munikrishna, Venkatesh alias Chandra, Deceased Chinnappa

and Lakshmanna having given their voluntary statement to

Question No.26 and the same has been recorded in the C.D. and

D.V.D. When it is stated that it will be shown

and it should be seen, Munikrishna, Venkatesh alias Chandra,

Lakshmamma have replied that they will not see it, and they will

not tell anything in that regard, and the said reply has been

recorded.

35. On noticing the said D.V.D. (Ex.P-25), the accused Nos.l, 2

and 4 had given voluntary statements, and the persons found

therein are the accused No.1, 2 and 4 before this Hon'ble Court,

and on observing the statement given by them, they are the

persons who have given their statement naturally without

subjecting any pressure or threat in the natural manner. On

observing their appearance while recording the same, they did

not have the situation of any tension or shock, It will

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make the statement which is given naturally. If at all they had

not given any statement or if the said statement was obtained

and recorded by the police forcibly by duress, they could have

stated the same in their Section 313 Statement. But, without

giving any such reply, they even do not like to watch the D.V.D.

and the C.D. containing of the photographs of the persons

subjected to incident and also the D.V.D. of Sutta Mutta

Program participated by the accused. On noticing the statement

given by them that they do not like to say anything in that

regard, it reveals that if at all if they had seen it they ought have

identified themselves and they should have given some reply

regarding the facts of the statement given by them. But, they

have stated that they will not see the C.D. and also the D.V.D.

and that they will not give any reply, the intention behind it will

be non-admitting the true facts.”

14. The Trial Court finally concluded:

“52. On the basis of voluntary statements given by the accused

No.1 to 3, the 4th accused Lakshmamma has stated that she

along with others in the guise of requesting of water went to the

residential house of the deceased and got open the door of the

house, and then the accused rushed inside the house and

committed her murder, and though she has not directly

participated to the commission of murder, according to her, she

and her group……. Therefore, I answer the issues No.1 to 4 in

the affirmative and came to the conclusion that through

circumstantial evidence the prosecution has proved that the

accused No.1, 2 and 3 made attack against her and murdered

her, and also stolen the gold and silver ornaments which she had

wore on her body. This Court having been constituted for

conducting trial and deciding the heinous offence committed by

Dhadupalya gang, and the Inspector called Chalapati got arrest

of the accused in all the cases which are registered for trial and

having recovered from them the stolen articles, and also even

the place of occurrence shown by the accused conducted

mahazar, and thus played a main role in the investigation.

Subsequently, he transferred the cases to the concerned

jurisdictional police stations. Though there may be some

defects in all these cases, several Investigating Officers having

taken up investigation for the reason of their transfer or for any

other reason, and though might have caused some defects in the

said circumstances, the Police Inspector Sri. Chalapathi and his

team by arresting the accused and their gang and subjected to

the actions of the Court, and this Court will appreciate the

actions taken by him.”

15. While considering the matter at the stage of sentencing, the Trial

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Court in its order dated 30.09.2010 observed: -

“15. The prosecution through the Investigating Officer

Chalapathi who traced the accused for the first time submitted a

detailed statistical report that what kind of offence committed by

the persons of Dandupalya Group. Further, the statistical report

reveals that Munikrishna alias Venkataswamy the accused in

this case has totally participated in 54 different cases within the

limits of various police stations of Karnataka State and out of

them he participated in 28 dacoit and murder cases, and out of

them he committed 50 murder offence, and that the accused

Venkatesh alias Chandra has participated in 45 different cases,

and out of them he participated in 28 dacoit and murder cases,

and that the accused Nallathimma participated in 28 dacoit and

murder cases and that the accused Lakshmamma participated in

18 murder cases.

16. In view of the above facts the prosecution has argued to

impose the punishment of death imprisonment to the accused,

and the offence committed by the accused being extremely

heinous offence, it is also prayed impose death imprisonment

considering the offence as most rarest of rare cases.

*** *** ***

18. According to the statistical report furnished before the

Court totally 111 cases are registered. The accused are released

in most of the cases among them. In some of the cases as stated

commencing from life imprisonment other punishments also

imposed against them which they are suffering. Further, on

observing all these cases, the modus operandi of the accused is

that the accused are doing the profession of taking assistance of

women in their group, through them got marked the houses (the

houses in which weak persons, aged persons and woman are

staying) and got themselves introduced in the guise of

requesting for water and food, and in the same guise they will

got open the door of the house, the male persons of the gang will

trespass into the house and assault the ladies, aged persons and

weak persons with the iron rod, cut the neck from the knife,

tying the neck tightly from the thread kill them holding their

breath, take away the gold ornaments and other ornaments from

their body and from their house, sell them and lead their life

from doing so. Since the year 1991 to 2000 the same gang have

committed the said act in all the parts of Karnataka and also in

Kerala State, and according to the statistical report furnished

they have totally committed 74 murders, out of them being 34

men and 40 women and they are murdered in different ways.

That too, it states that 23 men and 21 women are murdered in

Bangalore City only. The defense counsel have not questioned

the same.”

15

16. Criminal Reference Case No.14 of 2010 and Criminal Appeal

Nos.799 of 2011 and 637 of 2012 arising from the decision of the Trial

Court were dealt with by the judgment and order presently under challenge,

as stated above. Some of the relevant paragraphs of the decision were: -

“12. Further, the Trial Court having noted the offence proved

against accused Nos.1 to 4 was not only heinous, but accused

Nos.1 to 4 committed the said offence with utter brutality and

that they were facing trial before various courts in as many as

111 cases involving similar charges and the appellants/ accused

having been convicted in some of the cases, the Trial Court

found it proper to award death sentence on all the four accused

persons.

31. From the material on record, it is evident that there are no

eyewitnesses to the incident. The case of the prosecution is

rested entirely on circumstantial evidence. These circumstances

relied on by the prosecution are:-

The factum of the murder and the simultaneous missing of

gold and silver ornaments from the person of the deceased.

Recovery of the missing ornaments belonging to the

deceased at the instance of the appellants/ accused Nos.1

to 4.

Recovery of weapons viz. iron rod – M.O.16 and knife

M.O. 17 near the spot of occurrence at the instance of the

appellants/ accused Nos.1 to 4.

The conduct of the appellants/ accused Nos.1 to 4 in

pointing out the place of occurrence.

54. Apropos the contention of the learned counsel that the

contents of Ex.P6 and the evidence of PW-6 do not have the

effect of incriminating the accused, as the spot of occurrence

was known to the Investigating officer much prior to the arrest

of accused No.1 is concerned, suffice it to note that there is

nothing in the entire evidence to suggest that accused Nos.1 to 4

derived knowledge of the spot of occurrence through the

Investigating officer or through any other mode. There is no

explanation by the accused that they came to know of the spot of

occurrence through the Investigating Officer or through any

other witnesses. On the other hand, the evidence of PW.6

coupled with the contents of Ex.P6 clearly establish that accused

Nos.1 to 4 by themselves showed the place of occurrence to the

police and the panch witnesses, as a result, this evidence is

rendered relevant under section 8 of the Evidence Act thereby

16

establishing yet another circumstance in proof of the complicity

of accused Nos.1 to 4 in the offence charged against them.

66. Thus, it is clear that simultaneous or identical disclosures

are not an anathema to Section 27 of the Evidence Act. In the

instant case, the evidence produced by the prosecution clearly

goes to show that all the four accused persons made similar

disclosures relating to the hiding of the weapons, knowledge of

the spot of the offence and the sale or ornaments belonging to

the deceased. It is proved that the information given by the

accused has led to the discovery of facts which clearly establish

the nexus between accused Nos.1 to 4 and the crime in question.

70. ………We have discussed at length the evidence of PW-1

and other witnesses who have unequivocally stated before the

Court that during the murder of the deceased, the gold

ornaments worn by her were found missing. It is also proved by

the prosecution that the very same articles were recovered from

the possession of the accused. The accused did not furnish any

explanation for the possession of the said ornaments belonging

to the deceased. Coupled with the above circumstances, the

recovery of the weapons clinchingly establish that the injuries

found on the deceased were caused with M.Os. 16 and 17.

Added to that, knowledge and conduct of the accused in

pointing out to the place of occurrence completes the chain of

circumstances establishing the complicity of accused Nos.1 to 4

in the act of robbery and murder of the deceased. The

prosecution therefore has conclusively proved all the above

circumstances which in our opinion lead to the guilt of accused

Nos.1 to 4 beyond all reasonable doubt. The decisions relied on

by the learned counsel for the appellants-accused are therefore

distinguishable on the facts of the present case.

71. In the case in hand, the accused were charged under Section

396 read with Section 34 of IPC. The Trial Court has held that

the facts proved against the accused constitute the offence under

Section 396 of the IPC. This finding in our opinion is contrary to

the provisions of section 396 of IPC. As per section 396 of

Indian Penal Code, in order to constitute the offence of dacoity

with murder, any one of the five or more persons should commit

murder while committing the dacoity. Therefore, participation of

five or more persons is a sine qua non to maintain the charge

under Section 396 of IPC. In the instant case, none of the

witnesses have spoken about the presence or participation of

five or more persons either in the act of murder or in the

commission of robbery. Even though charges were framed

against accused Nos.1 to 5, 6 to 9 under Section 396 of the IPC,

the Trial Court has acquitted accused Nos.6, 7 and 8 on the

ground that there is no evidence to prove the ingredients of the

offence against these accused Nos.6, 7 and 8. The Trial Court

has not recorded any finding to the effect that in addition to

17

accused Nos.1 to 4, other accused also participated in the

commission of the crime in question. The circumstances proved

by the prosecution, as discussed above, establish the

involvement of only accused Nos.1 to 4. Therefore, the

conviction recorded against accused Nos.1 to 4 under section

396 of the IPC and the consequent death sentence awarded

against them cannot be sustained. Hence, the conviction of

accused Nos.1 to 4 under section 396 r/w. 34 of Indian Penal

Code and the death sentence imposed against them deserves to

be set aside.

73. Under Section 394 of Indian Penal Code, not only the person

who actually causes hurt, but his associates also would be

equally liable to the act by fiction of Law. The expression “if

any person, in committing or in attempting to commit robbery,

voluntarily causes hurt, such person, and any other persons

jointly concerned in committing or attempting to commit such

robbery, shall be punished” brings within its purview all other

accused involved in the robbery. As the prosecution has

established beyond reasonable doubt that accused Nos.1 to 4

have committed robbery of the ornaments of the deceased and in

committing robbery have also caused her death, we are of the

view that accused Nos.1 to 4 are guilty for the offence

punishable under Section 394 of IPC, accused Nos.1 to 4 are

therefore liable for conviction under section 394 read with

Section 34 of Indian Penal Code.

74. We have also heard the learned counsel for the accused and

the learned SPP on the sentence. The learned counsel for the

appellants/ accused Nos.1 to 4 plead that the accused have

already undergone custody for more than 16 years from the date

of their arrest and at the time of arrest, all the accused were of

young age and therefore having regard to the above

circumstances, in the interest of justice, the period of custody

already undergone by them be set off towards the imprisonment

to be awarded for the offence under section 394 read with

Section 34 of Indian Penal Code.

75. We have considered the submissions. We do not find any

good reason to take a lenient view in the matter. The material on

record indicate that the accused have committed a ghastly and

gruesome murder in a highly depraved manner. The facts proved

in evidence go to show that the accused murdered an innocent

aged lady only to rob her valuables. It is a clear case of murder

for gain. The manner in which the accused have inflicted

injuries on the victim indicate the pervert and diabolical

tendencies of the accused. That apart, the prosecution has

furnished statistics Which go to show that the accused were

involved in similar offences for which they have been either

convicted or are serving sentences. Therefore, we do not find

any reason to show leniency to the appellants. On the other

18

hand, having regard to the facts and circumstances of this case,

we are of the opinion that the ends of justice would require that

maximum punishment prescribed under section 394 Indian

Penal Code is awarded to the accused, as the fact situation of

this case requires that the sentence awarded to the accused

should serve as a deterrent. It is also noticed that several cases

are pending against the accused before this Court wherein it is

alleged that the accused have been attacking helpless lonely

womenfolk and have been committing ghastly murders by

inflicting injuries inhumanly without showing any mercy

whatsoever to the victims. Hence, we are of the view, that the

accused do not deserve any sympathy at the hands of this Court.

For all these reasons, maximum punishment prescribed under

Section 394 Indian Penal Code deserves to be awarded on the

appellants/ accused No.1 to 4. Hence the following order:

ORDER

1. Criminal Appeal Nos.799 of 2011 and 637 of 2012 are

allowed in-part.

2. The conviction of accused Nos.1 to 4 under Section 396 of

Indian Penal Code and the consequent imposition of death

sentence passed by XXXIV Addl. City Civil & Sessions Judge

(Special Court), Central Prison, Parappana Agrahara, Bengaluru

in S.C.No.443 of 2001 and S.C.No.55 of 2004 is set aside.

3. The accused Nos.1 to 4 are held guilty of the lesser offence

punishable under Section 394 read with Section 34 of Indian

Penal Code and are accordingly convicted for the said offence.

The accused Nos.1 to 4 are sentenced to undergo rigorous

imprisonment for life and a fine of Rs.25,000/- each for the

offence under section 394 read with Section 34 Indian Penal

Code.

4. Accused Nos.1 to 4 are entitled for the benefit of set off as

provided under Section 428 of Code of Criminal Procedure

subject to the provision contained in Section 433-A and

provided that orders have been passed by the appropriate

authority under Section 432 or Section 433 of the Code of

Criminal Procedure.

5. Criminal Referred Case No.14 of 2010 stands rejected in

terms of the above order.”

17. In this appeal, we have heard Mr. Lakshmeesh S. Kamath, learned

Advocate for the appellants and Mr. Nikhil Goel, learned Additional

19

Advocate General for the State.

18. Before we consider the merits of the matter, some of the features of

the present case which we have found to be quite disturbing must be noted

and deliberated upon. The Trial Court in paragraphs 27 to 30 of its

judgment extracted voluntary statements of the appellants. First and

foremost, going by the parameters of Section 27 of the Evidence Act

4

only

so much of information which relates distinctly to the facts thereby

discovered can be stated to have been proved. The extent and ambit of said

provision as well as applicability thereof were considered by the Privy

Council in Pulukuri Kotayya and Ors. v. King-Emperor

5

as under:

“10. Section 27, which is not artistically worded, provides an

exception to the prohibition imposed by the preceding section,

and enables certain statements made by a person in police

custody to be proved. The condition necessary to bring the

section into operation is that discovery of a fact in consequence

of information received from a person accused of any offence in

the custody of a Police officer must be deposed to, and

thereupon so much of the information as relates distinctly to the

fact thereby discovered may be proved. The section seems to be

based on the view that if a fact is actually discovered in

consequence of information given, some guarantee is afforded

thereby that the information was true, and accordingly can be

safely allowed to be given in evidence; but clearly the extent of

the information admissible must depend on the exact nature of

the fact discovered to which such information is required to

relate.

Normally the section is brought into operation when a person in

police custody produces from some place of concealment some

object, such as a dead body, a weapon, or ornaments, said to be

connected with the crime of which the informant is accused. Mr.

Megaw, for the Crown, has argued that in such a case the "fact

discovered" is the physical object produced, and that any

information which relates distinctly to that object can be proved.

4

The Indian Evidence Act, 1872.

5

AIR (34) 1947 PC 67.

20

Upon this view information given by a person that the body

produced is that of a person murdered by him, that the weapon

produced is the one used by him in the commission of a murder,

or that the ornaments produced were stolen in a dacoity would

all be admissible. If this be the effect of section 27, little

substance would remain in the ban imposed by the two

preceding sections on confessions made to the police, or by

persons in police custody. That ban was presumably inspired by

the fear of the Legislature that a person under police influence

might be induced to confess by the exercise of undue pressure.

But if all that is required to lift the ban be the inclusion in the

confession of information relating to an object subsequently

produced, it seems reasonable to suppose that the persuasive

powers of the police will prove equal to the occasion, and that in

practice the ban will lose its effect. On normal principles of

construction their Lordships think that the proviso to s. 26,

added by s. 27, should not be held to nullify the substance of the

section. In their Lordships view it is fallacious to treat the "fact

discovered" within the section as equivalent to the object

produced; the fact discovered embraces the place from which

the object is produced and the knowledge of the accused as to

this, and the information given must relate-distinctly to this fact.

Information as to past user, or the past history, of the object

produced is not related to its discovery in the setting in which it

is discovered. Information supplied by a person in custody that

"I will produce a knife concealed in the roof of my house" does

not lead to the discovery of a knife; knives were discovered

many years ago. It leads to the discovery of the fact that a knife

is concealed in the house of the informant to his knowledge, and

if the knife is proved to have been used in the commission of the

offence, the fact discovered is very relevant. But if to the

statement the words be added "with which I stabbed A" these

words are inadmissible since they do not relate to the discovery

of the knife in the house of the informant.”

(Emphasis added)

As was observed by the Privy Council the words - “with which I

stabbed A” were inadmissible since they did not relate to the discovery of

knife in the house of the informant. Applying this logic, only that part of the

statement which leads to the discovery of certain facts alone could be

marked in evidence and not the entirely of the statement. Coming to the

instant case and going by the principle and the illustration highlighted by the

21

Privy Council, out of the statement of accused No.1, only the following

portion except the words printed in “italics” would be admissible and can be

marked in evidence:

“…..If I am taken there, I will show the spot where we

committed murder, and we will show the place where we

have thrown the knife and the rod. And we will show the

shop in which we sold the jewelleries.”

The expression “where we committed murder” must not come on

record. Similarly, all the earlier facts narrated in the statement about past

history which are in the nature of self-implication, would be inadmissible as

amounting to a confession made to a Police Officer. All the statements

namely, Exhs. P-21 to P-24 must be read accordingly.

19. We must observe that we have repeatedly found a tendency on part of

the Prosecuting Agency in getting the entire statement recorded rather than

only that part of the statement which leads to the discovery of facts. In the

process, a confession of an accused which is otherwise hit by the principles

of Evidence Act finds its place on record. Such kind of statements may have

a direct tendency to influence and prejudice the mind of the Court. This

practice must immediately be stopped. In the present case, the Trial Court

not only extracted the entire statements but also relied upon them.

20. The other disturbing feature that we have noticed is that voluntary

statements of the appellants were recorded on a DVD which was played in

Court and formed the basis of the judgment of the Trial Court as is

22

noticeable from paragraph Nos.34 and 35 of its judgment. Such a statement

is again in the nature of a confession to a Police Officer and is completely hit

by the principles of Evidence Act. If at all the accused were desirous of

making confessions, the Investigating Machinery could have facilitated

recording of confession by producing them before a Magistrate for

appropriate action in terms of Section 164 of the Code. Any departure from

that course is not acceptable and cannot be recognized and taken on record

as evidence. The Trial Court erred in exhibiting those DVD statement

Exh.P-25 to 28. As a matter of fact, it went further in relying upon them

while concluding the matter on the issue of conviction.

21. What has further aggravated the situation is the fact that said

statements on DVD recorded by the Investigating Agency were played and

published in a program named “Putta Mutta” by Udaya TV. Allowing said

DVD to go into the hands of a private TV channel so that it could be played

and published in a program is nothing but dereliction of duty and direct

interference in the administration of Justice. All matters relating to the

crime and whether a particular thing happens to be a conclusive piece of

evidence must be dealt with by a Court of Law and not through a TV

channel. If at all there was a voluntary statement, the matter would be dealt

with by the Court of Law. The public platform is not a place for such debate

or proof of what otherwise is the exclusive domain and function of Courts of

law. Any such debate or discussion touching upon matters which are in the

23

domain of Courts would amount to direct interference in administration of

Criminal Justice.

22. The last disturbing feature is the fact that Chart Exh.P-29 was taken to

be proof of the activities of the gang to which the appellants allegedly

belonged. Apart from exhibiting the chart, no details or documents either in

the form of chargesheet or orders, depositions were produced on record. If

the Prosecution wanted the Court to take note of the fact that there were

other matters in which accused were involved, the concerned Chargesheets

should have been produced on record along with sufficient details including

the judgments or orders of conviction. A mere chart cannot be taken as

proof of the involvement of the accused in other crimes either at the stage of

conviction or sentence. But that factor seriously weighed with the Trial

Court as is obvious from paragraphs 15 to 18 of the order of sentence. In

fact, such involvement was taken to be one of the reasons why the death

sentence was awarded by the Trial Court. Such a practice can never be

approved.

23. We must clarify that the approach at certain stages including the stage

of considering the bail application may be qualitatively different. At the

stage of consideration of bail, the primary concern is to weigh in balance the

liberty of an accused and the possible prejudice that may get visited upon the

societal interest in case he is released. It would therefore be apt and proper

24

to consider his involvement in other crimes. But at the stage of final

assessment whether conviction be recorded or not, the matter must be

considered purely on its merits unless the very membership of a gang or a

group or an outfit itself can amount to an offence or as an aggravated form

of an offence. Again, at the stage of sentencing, his involvement in other

crimes may be a relevant factor provided the concerned material in the form

of concluded judgments in the other matters are brought on record in a

manner known to law. The established involvement in other matters would

then certainly be relevant while dealing with the question whether the

concerned accused is required to be dealt with sternly or leniently.

24. We have gone through Chart Exh. P-29. According to said chart, in so

far as the present appellants are concerned, they were said to be involved in

one more crime which has given rise to Special Leave Petition (Crl) Diary

No.24079 of 2020 and was listed along with the instant appeal before us.

That matter is still pending consideration before us. Therefore, what weighed

with the Trial Court was the alleged involvement of the other members of

the alleged gang in so many similar activities, in support of which there was

no concrete material, other than the confessions of the appellants.

25. Coming to the merits, the present case is based on circumstantial

evidence and as observed by the High Court in Paragraph 31 of its judgment,

four circumstances were relied upon to bring home the case against the

25

appellants. Before we deal with the material in support of and connected to

said four circumstances, the principles concerning circumstantial evidence

cases must be stated for facility. After noting various decisions, following

principles were noted in the decision of this Court in Sharad Birdhichand

Sarda v. State of Maharashtra

6

, which principles have since then been

followed consistently:

“151. Before discussing the cases relied upon by the High Court

we would like to cite a few decisions on the nature, character

and essential proof required in a criminal case which rests on

circumstantial evidence alone. The most fundamental and basic

decision of this Court is Hanumant v. State of Madhya

Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]

. This case has been uniformly followed and applied by this

Court in a large number of later decisions up-to-date, for

instance, the cases of Tufail (Alias) Simmi v. State of Uttar

Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55]

and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 :

AIR 1972 SC 656] . It may be useful to extract what Mahajan, J.

has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR

1091 : 1953 Cri LJ 129] :

“It is well to remember that in cases where the

evidence is of a circumstantial nature, the circumstances

from which the conclusion of guilt is to be drawn should

in the first instance be fully established, and all the facts so

established should be consistent only with the hypothesis

of the guilt of the accused. Again, the circumstances

should be of a conclusive nature and tendency and they

should be such as to exclude every hypothesis but the one

proposed to be proved. In other words, there must be a

chain of evidence so far complete as not to leave any

reasonable ground for a conclusion consistent with the

innocence of the accused and it must be such as to show

that within all human probability the act must have been

done by the accused.””

Thus, the first principle is that the circumstances on the basis of which

the conclusion of guilt is to be drawn, must be fully established.

6

AIR 1984 SC 1622 = (1984) 4 SCC 116

26

26. We may now deal with the circumstances to consider whether the

prosecution has been able to establish them.

27. The initial reporting in the case was made by Dr. Prakash Vishnu son

of the deceased. In that reporting, nothing was alleged about the missing

ornaments. However, the Inquest Report noted injuries on the earlobes

which were specified in detail in Post Mortem Report (Exh.P-14). Injuries

11 and 12 of the said Post Mortem Report are quite clear. Further, the

statement of PW-1, the husband of the deceased, recorded soon after the

incident did refer to the normal ornaments which were missing. It may

therefore be taken to have been established that the missing of gold and

silver ornaments from the person of the deceased was quite simultaneous

with the murder of the deceased. The first circumstance propounded by the

prosecution in support of its case was thus well established.

28. We may now deal with the second circumstance regarding recovery of

the missing ornaments at the instance of the appellant. It must be noted that

the appellants were arrested 15 months after the incident. Soon after their

arrest their voluntary statements Exhs. P-21, 22, 23 and 24 were recorded on

01.02.2001. These voluntary statements do indicate the willingness on the

part of the appellants to show the shop in which the items of jewellery were

sold by them. However, the actual recoveries from the concerned shop were

made only on 7

th

and 8

th

February, i.e. more than 7 days after the voluntary

27

statements. There is no explanation why it took so much time for the

Investigating Machinery to take the accused to the concerned shop. Further,

the shop owner could not produce any register or documentation that any of

the appellants had come to his shop on a particular day and sold the

concerned ornaments. We must therefore go only by his oral assertions and

not any contemporaneous record. The description of the ornaments, the

weight of the ornaments and the price paid by the shop owner to the

appellants and such other details are not forthcoming from any record. It

definitely means that the ornaments were not purchased by the jeweller in

regular course of his business and he must be taken to be aware that the

ornaments were a stolen property. Even then, the ornaments were kept in

the same condition by the jeweller for more than 15 months, which again is

not quite consistent, as in normal circumstances the nature of such stolen

property would be attempted to be changed as early as possible.

The crucial aspect is that even after the recovery of the ornaments, no

Test Identification Parade was arranged by the Investigating Machinery.

The ornaments worn by the deceased were normal ornaments which a lady

would wear. Out of three witnesses examined by the Prosecution, the

mother and the sister of the deceased did not support the case of the

prosecution on identification of the ornaments. The only person who

supported the case was the husband of the deceased who was not subjected

to any Test Identification Parade.

28

The missing links in this circumstance are quite crucial and important.

We, therefore, do not hold this circumstance to have been fully established

and the connection of the appellants with the missing ornaments cannot be

said to have been established.

29. We now turn to the third circumstance which is about recovery of iron

rod M.O.- 16 and knife M.O.-17. As the statements of the appellants

indicate, these objects were thrown by them near the fence erected by the

side of a drainage. The objects were said to have been recovered 15 months

later and yet were carrying blood stains sufficient enough for the Chemical

Examiner to analyze and report that it was human blood. First and foremost,

the objects, going by the case of the prosecution, went completely unnoticed

all the while by anyone. During this period of 15 months, the concerned

area must have received rain showers on number of occasions. Additionally,

there would be insects and other living beings who may feed on the blood

stains present on these objects. It is impossible to believe that even after 15

months the material objects would still carry bloodstains. The chemical

examination also simply found the bloodstains to be of human blood but

failed to analyze the blood group and other details which could be associated

with the deceased. Considering the fact that the objects were supposed to

have been thrown 15 months earlier in a place which was accessible to

everyone and was open to the vagaries of nature, we do not accept said

29

circumstance to have been proved. In our view, this circumstance cannot be

held against the accused.

30. We may hold the fourth circumstance to be proved. It is not as if that

the prosecution was unaware about the place of occurrence but the fact that

the appellants could point the house where the incident had occurred may

show knowledge on their part about the place of occurrence.

31. Thus, out of four circumstances projected by the prosecution, the

second and the third circumstances must be eschewed for consideration

while seeing whether the circumstances form a chain of evidence so

complete as not to leave any reasonable ground for the conclusion consistent

with the innocence of the accused and whether they rule out every possible

hypothesis except the one to be proved by the prosecution. In this analysis,

we are guided by the approach which must be adopted in such matters as has

been observed in Musheer Khan @ Badshah Khan & Anr. v. State of

Madhya Pradesh

7

. The relevant passages from the judgment are:

“39. In a case of circumstantial evidence, one must look for

complete chain of circumstances and not on snapped and

scattered links which do not make a complete sequence. This

Court finds that this case is entirely based on circumstantial

evidence. While appreciating circumstantial evidence, the Court

must adopt a cautious approach as circumstantial evidence is

“inferential evidence” and proof in such a case is derivable by

inference from circumstances.

40. Chief Justice Fletcher Moulton once observed that “proof

does not mean rigid mathematical formula” since “that is

impossible”. However, proof must mean such evidence as would

7

(2010) 2 SCC 748.

30

induce a reasonable man to come to a definite conclusion.

Circumstantial evidence, on the other hand, has been compared

by Lord Coleridge “like a gossamer thread, light and as

unsubstantial as the air itself and may vanish with the merest of

touches”. The learned Judge also observed that such evidence

may be strong in parts but it may also leave great gaps and rents

through which the accused may escape. Therefore, certain rules

have been judicially evolved for appreciation of circumstantial

evidence.

41. To my mind, the first rule is that the facts alleged as the

basis of any legal inference from circumstantial evidence must

be clearly proved beyond any reasonable doubt. If conviction

rests solely on circumstantial evidence, it must create a network

from which there is no escape for the accused. The facts

evolving out of such circumstantial evidence must be such as

not to admit of any inference except that of guilt of the accused.

(See Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC

74 : (1963) 1 Cri LJ 70] )

42. The second principle is that all the links in the chain of

evidence must be proved beyond reasonable doubt and they

must exclude the evidence of guilt of any other person than the

accused. (See State of U.P. v. Dr. Ravindra Prakash

Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : 1992 Cri LJ

3693] , SCC p. 309, para 20.)

43. While appreciating circumstantial evidence, we must

remember the principle laid down in Ashraf Ali v. King

Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when

in a criminal case there is conflict between presumption of

innocence and any other presumption, the former must prevail.

44. The next principle is that in order to justify the inference of

guilt, the inculpatory facts must be incompatible with the

innocence of the accused and are incapable of explanation upon

any other reasonable hypothesis except his guilt.

45. When a murder charge is to be proved solely on

circumstantial evidence, as in this case, presumption of

innocence of the accused must have a dominant role. In Nibaran

Chandra Roy v. King Emperor [11 CWN 1085] it was held that

the fact that an accused person was found with a gun in his hand

immediately after a gun was fired and a man was killed on the

spot from which the gun was fired may be strong circumstantial

evidence against the accused, but it is an error of law to hold

that the burden of proving innocence lies upon the accused

under such circumstances. It seems, therefore, to follow that

whatever force a presumption arising under Section 106 of the

Evidence Act may have in civil or in less serious criminal cases,

in a trial for murder it is extremely weak in comparison with the

31

dominant presumption of innocence.

46. The same principles have been followed by the

Constitution Bench of this Court in Govinda Reddy v. State of

Mysore [AIR 1960 SC 29 : 1960 Cri LJ 137] where the learned

Judges quoted the principles laid down in Hanumant Govind

Nargundkar v. State of M.P. [AIR 1952 SC 343 : 1953 Cri LJ

129] The ratio in Govind [AIR 1952 SC 343 : 1953 Cri LJ 129]

quoted in AIR para 5, p. 30 of the Report in Govinda

Reddy [AIR 1960 SC 29 : 1960 Cri LJ 137] are:

“5. … ‘10. … in cases where the evidence is of a

circumstantial nature, the circumstances [which lead to

the conclusion of guilt should be in the first instance]

fully established, and all the facts so established should

be consistent only with the hypothesis of the guilt of the

accused. Again, the circumstances should be of a

conclusive nature and tendency and they should be such

as to exclude every hypothesis but the one proposed to

be proved. In other words, there must be a chain of

evidence so far complete as not to leave any reasonable

ground for a conclusion consistent with the innocence

of the accused and it must be [shown] that within all

human probability the act must have been [committed]

by the accused.’ [ As observed in Hanumant Govind

Nargundkar v. State of M.P., AIR 1952 SC 343 at pp.

345-46, para 10.] ”

The same principle has also been followed by this Court

in Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607 :

1974 SCC (Cri) 643 : AIR 1974 SC 1144]”

32. We are, thus, left with only two circumstances, namely; first and the

fourth circumstances. Before we consider them, a submission advanced on

behalf of the State on the basis of Chart Exh.P-29 must be dealt with.

According to the said Chart, the appellants belonged to a particular gang

which was indulging in crimes of similar nature and as observed by the Trial

Court in its order of sentence dated 30.09.2010, there were about 111 cases

registered against the members of the gang. However, as stated earlier, not a

single document either in the form of a Chargesheet order, depositions or

orders were produced on record. A mere chart giving description of

32

offences, numbers and the sections of the offences and about the nature of

offences cannot be taken into account at the stage of conviction.

33. Weighing the first and the fourth circumstances on the touchstone of

the principles accepted by this Court, in our view, the Prosecution has not

been able to discharge the burden to such an extent that the presumption of

innocence weighing in favour of the accused stands displaced. As a matter of

fact, with the non-establishment of the second circumstance, the first

circumstance by itself does not point in the direction of the appellants. In any

case, the first and the fourth circumstances are wholly inadequate. They do

not form a consistent chain leading to a hypothesis sought to be proved by

the Prosecution. We, therefore, grant benefit of doubt to the appellants and

acquit them of the charges levelled against them. They be set at liberty

unless their custody is required in any other case.

34. The appeals are allowed accordingly.

………………….. ……….............................J

(UDAY UMESH LALIT)

.......................................................................J

(PAMIDIGHANTAM SRI NARASIMHA)

New Delhi,

April 19, 2022.

ITEM NO.1502 COURT NO.2 SECTION II-C

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1476-1477/2018

VENKATESH @ CHANDRA & ANR. ETC. Appellant(s)

VERSUS

STATE OF KARNATAKA Respondent(s)

Date : 19-04-2022 These appeals were called on for pronouncement of

judgment today.

For Appellant(s) Mr. Lakshmeesh S. Kamath, AOR

Mr. Kaustubh Shukla, Adv.

Ms. Smriti Ahuja, Adv.

Ms. Nancy Shamim, Adv.

For Respondent(s) Mr. Nikhil Goel, AAG

Mr. V. N. Raghupathy, AOR

Mr. Justice Uday Umesh Lalit pronounced the reportable judgment of

the bench comprising His Lordship and Hon'ble Mr. Justice

Pamidighantam Sri Narasimha

The relevant portion of the judgment is quoted hereunder:

“33.…

We, therefore, grant benefit of doubt to the

appellants and acquit them of the charges levelled

against them. They be set at liberty unless their

custody is required in any other case.

34.The appeals are allowed accordingly.”

Pending applications, if any, shall stand disposed of.

(INDU MARWAH) (VIRENDER SINGH)

COURT MASTER (SH) BRANCH OFFICER

(SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE)