R. HARISH v. SHAKAMBARI

own house and he has rented out the first floor of the said house. In the ground floor, a person by name Shivakumar is residing as tenant who is working in Air Force. In the - 5 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 first floor, one Panduranga and his wife Rajeshwari @ Rajashree with two children are residing on rental basis. Panduranga is working at Gokuldas Images in Goragunte Palya. It is stated by the complainant that, on 1.2.2007 at about 10.00 a.m, he went to his factory and returned to house at 7.30 p.m. At about 8.15 p.m. he heard the noise from the gate situated in front of his house and he heard the noise of shouting of one person. Suddenly, himself and his wife Jayanthi came out of the house and heard the noise of bullet firing. When they came out of the house, it was noticed that, Rajeshwari @ Rajashree who was residing in the rented house in the first floor, had suffered the bullet injuries and they rushed to her. They noticed that she had sustained the bullet injury on her right eye. She was crying because of the injuries sustained by her. Immediately the complainant shifted said Rajeshwari @ Rajashree the Sarojini Hospital situated T.Dasarahalli, 8th Mile, Bengaluru City in his car. This fact was informed to her husband Panduranga. Thereafter, she was shifted to Sarojini Hospital after taking the first aid - 6 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 treatment. Even thereafter, she was shifted to Suguna Nursing Home, Rajajinagar, Bengaluru further treatment. There she was taking treatment as an in- patient.

6. It is alleged that, two motorcyclists i.e. one rider and one pillion rider ran away on their motor cycle. This fact was told to him by his neighbours. It is alleged that he has no enemies of his own. According to him, when Dhananjaya Appanachari was working with him and he left the job and thereafter, he started a separate factory with one Vasudeva. He is running an independent factory. In order to kill Rajeshwari @ Rajashree some miscreants might have fired towards Rajeshwari @ Rajashree. With these allegations, he filed a complaint which was registered in Crime No.35/2007 for the offences under Section 307 of IPC, 25, 27 and 28 of Indian Arms Act and criminal law was set in motion. - 7 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

7. PW.16 Rangaswamy, the then Police Inspector of Peenya Police on registering the crime, went to the scene of offence, on the same day itself deputed his staff for the purpose of watching the scene of offence. He also called ballistic expert for the purpose of examination. He identified the complaint so filed by the complainant as per Ex.P1.

8. On 2.2.2007 in the presence of Panchas, he prepared the panchanama, recovered the blood stained mud, bullets, tiles, paper cards. He identifies the said articles as MO Nos. 1 to 10. Recorded the statement of witnesses so also injured Rajeshwari @ Rajashree by visiting the Hospital.

9. According to the case of the prosecution, on

3.2.2007, the injured Rajeswari gave her statement before the Police when she was taking treatment. He seized certain articles from the possession of the said injured. Then he deputed his staff for the purpose of nabbing the - 8 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 so called accused persons. He sent the seized articles to the FSL for the purpose of scientific examination. On

18.2.2007, PSI Raju by apprehending the accused Ananda, Kamal, Sudhakar and Lokanatha were produced before him. It is the case of the prosecution that, accused nos. 2 and 3 produced the mobile phones, diary, purse, ID sim, Nokia mobile, pocket diaries etc. and he seized them. He identified MO Nos.15, 16 and mobile phones. So also three telephone diaries at MO Nos.17,18 and 19. He identifies a small note book MO No.20. According to the prosecution, these accused persons gave their voluntary statement and based upon that, certain articles such as country pistols, live cartridge and other articles were seized from the possession of the accused persons at their instance.

10. It is the further case of the prosecution that, this complainant gave his further statement before the Police stating that, on 20.02.2007, when himself and his brother Purushotham were moving towards Sona Gardens at that time, he received an anonymous call and the - 9 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 person who was speaking spoke in Telugu language. When he asked the name of the said person, he told the name as Prabha. He told that the complainant is giving harassment to a lady residing in his compound. He gave a threat. He told the name of the complainant and also told that he is troubling the people. He also told that the complainant may tell the story to the police. According to him, to give money by threatening him as ransom. Another person spoke in English. For that, complainant told him that he is decent person and asked him not to trouble him. But, even then, they gave threat to give money. He received the call from tel.no.227984. It was recorded in his mobile. Thereafter, he went to the RMC Yard ACP office and as the Police Commissioner was not available in the office he went to his house, thereafter, when he was moving towards MEI Layout cross, he again received the telephone call. In the said telephone call, the persons who were speaking gave a threat to him stating that they want money otherwise they are going to kill his daughter, even his wife who goes to the market. When complainant asked - 10 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 him how much money they want, they demanded Rs.20,00,000/-. The complainant pleaded inability to pay that much amount. At last they asked Rs.10,00,000/- and cut the call. Immediately, the complainant went to the Peenya Police Station and informed the DCP about receiving the calls. The Police Inspector, Peenya P.S. provided protection to his house. Even thereafter, they used to make call and give threat to bring the money. He has told about the telephone calls recorded in his mobile no.9448117770. Further, the Police heard the audio conversation between complainant and accused which was recorded on 1.3.2007. The said CD is marked at MO No.12 in this case.

11. During the course of investigation, all the accused were arrested and at their instance, certain articles were seized by the police. On completion of the investigation, the IO PW.16 filed the charge sheet against accused persons for the aforesaid offences. - 11 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

12. Before the trial Court, to prove the guilt of the accused, prosecution in all examined 18 witnesses from PWs.1 to 18 and got marked Ex.P1 to P26 with respective signatures. So also, got marked MOs. NOs. 1 to 44 and closed the prosecution evidence.

13. On closure of evidence, accused were questioned under Section 313 of Cr.PC so as enable them to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. They denied their complicity in the crime and did not choose lead any defence evidence on their behalf. The defence of the accused is of a total denial.

14. The learned trial Court, on hearing arguments and on evaluation of the evidence placed on record by the prosecution, found accused nos.2 and 3 guilty of the aforesaid offences and acquitted the other accused persons namely 1, 4 to 7. This is how these - 12 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 accused persons are before this Court challenging the judgment of their conviction and order of sentence.

15. Sri Sunil Kumar S., learned counsel for the appellants with all vehemence submits that, identification of the accused nos.2 and 3 as a real assailants on the person of Rajeshwari @ Rajashree is not proved in accordance with law. He further submits that, in view of not conducting the identification parade, the very identity of these accused persons is not duly proved in accordance with law. He submits that, the prosecution is under obligation to prove the guilt of the accused beyond all reasonable doubt. When prosecution has failed to prove the guilt of the accused beyond all reasonable doubt, the trial Court ought not have convicted the accused persons only on presumptions and assumptions. He further submits that, as per the law laid down by the Apex Court in catena of judgments, it is for the prosecution to prove the guilt of the accused. Here, the prosecution has not proved the guilt of the accused though it is alleged that - 13 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 these accused persons have given their confession statement before the Police. In view of the provisions of Indian Evidence Act, these confession statements stated to have been given by the accused are not admissible unless the said recovery of the incriminating articles is at the instance of the accused leading to discovery. He submits that, though the confession may be regarded as evidence in that generic sense, because of provisions of Section 27 fact remains it is not evidence as defined under Section 3 of Indian Evidence Act. The result would be, in dealing with the case of accused persons, Court cannot start with confession of co-accused persons, it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to quality and effect of said evidence, then, it is permissible to turn to confession in order to receive assurance to the guilt of accused. He submits that, in catena of judgments, this principle is being followed by the Apex and other High Courts and such a confession statement is not admissible in evidence - 14 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 unless it is proved in accordance with law. In support of his submission, he relied upon the following citations: (i) Gireesan Nair v. State of Kerala - (2023) 1 SCC 180 (ii) Noorahammad v. State of Karnataka - (2016) 3 SCC 325 (iii)Chonampara Chellappan v. State of Kerala - (1979) 4 SCC 312 (iv) Udayakumar v. State of T.N., 2023 SCC OnLine SC 283 (v) Surinder Kumar Khanna v. Directorate of Revenue Intelligence - (2018) 8 SCC 271 (vi)Boini Mahipal v. State of Telangana, (2023) 8 SCC 398 (vii) Vasudev v. State of M.P. - (2022) 4 SCC 735 (viii) Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra - (2003) 2 SCC 708 (ix) Arvind Kumar @ Nemichand v. State of Rajasthan - (2022) 16 SCC 732

16. As against this submission, the learned HCGP submits that, the learned trial Court though acquitted accused, 1 and 4 to 7 but, the involvement of accused nos. 2 and 3 in the commission of crime is duly proved in accordance with law. Therefore, the trial Court is right in - 15 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 convicting the accused persons. In support of his submission, the learned HCGP relied upon various documentary and oral evidence relied by the prosecution. According to him, the trial Court is right in coming to such a conclusion that accused nos. 2 and 3 are involved in the commission of crime. So far as injuries sustained by Rajeshwari @ Rajashree is concerned, as per the wound certificate, she has sustained bullet injury on her right eye and in fact she has lost her right eye. Now she has no vision of her right eye. She has been operated and now the artificial eye has transplanted in the right eye. He submits that, there cannot be any interference in the impugned judgment passed by the trial Court.

17. I have given my anxious consideration to the arguments of both the side and meticulously perused the record. In view of rival submissions of both side, the following point arises for my consideration: “Whether the trial Court is justified in passing the judgment of conviction and order of sentence against the present appellants accused nos. 2 and 3 - 16 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 in view of the facts and circumstances brought on record by the prosecution?”

18. In a case of present nature, as per the case of the prosecution, when the incident has taken place at about 8.50 p.m. near the gate of the complainant’s house, wherein, it is alleged that the accused nos. 2 and 3 fired by using country pistols by asking the name of the complainant. The said firing hit the injured Rajeshwari @ Rajashree when she came out of the house and when the accused enquired the name of the complainant. She sustained the bullet injury on her right eye. It is not the case of prosecution that, surrounding the scene of offence, there exist a light and the injured could see the activities of the accused persons, in opening the firing on the said Rajeshwari @ Rajashree. They asked the name of the complainant about his whereabouts. When Rajeshwari @ Rajashree injured showed the house of the complainant, then they fired against said Rajeshwari @ Rajashree and bullet hit on her right eye. - 17 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

19. PW.1 being the complainant evidently is not an eye witness to the said firing. According to him, at 7.00 p.m. he came to the house. He was sitting in the house. At about 8.15 p.m. he heard the noise of the gate which is situated in front of house. He also heard the noise of the person who was crying. Immediately himself and his wife rushed outside the house and noticed that the Rajeshwari @ Rajashree was screaming and she had sustained the bullet injury on her right eye and she had fallen on the terrace. When he enquired, she told that two unknown persons came on a motor bike and fired at her. Immediately they shifted her to a nearby hospital in his car and then to Suguna Hospital. To that effect he lodged a complaint as per Ex.P1.

20. This complaint is very much silent about this Rajeshwari @ Rajashree had really identified the accused nos.2 and 3 as assailants on her. She never disclosed the same and stated that, some unknown persons came and fired. She did not disclose those unknown persons asked - 18 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 the complainant’s name but, the complaint shows that those two persons have asked the whereabouts of the complainant and there after fired at Rajeshwari @ Rajashree.

21. According to the evidence of PW.1 on the following day, the police came to the scene of offence and conducted the panchanama in the presence of panchas. There is no recital in the evidence that by the side of the house, the bullet was fallen down. It was seized by the police on the following day according to him. He also says in the garden, a bullet was fallen, it was also seized by the police, so also the police have seized blood stained blood and sample mud etc.,. Even other bullets are also seized for the purpose evidence.

22. The police prepared panchanama as per Ex.P2. He identifies the articles which were seized from the scene of offence at Ex.P1 to P11. He further states that, officers of FSL also came to the scene of offence on that day. - 19 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

23. Further, according to his evidence on 28.2.2007 at 12.00 noon when himself and his brother Purushotham were moving towards Sona Gardens at that time, he received an anonymous call. The person who called was speaking in Telugu language and he gave a threat to the complainant stating that he has to give Rs.15 lakhs otherwise they will kill his daughter as well as his wife who goes to the market. He received the said call and phone

227985. It was recorded in his mobile phone. So also he states that he showed his inability that much amount. They demanded Rs.10 lakhs atleast. He received the call to his Mobile No.9448117770. Even he has recorded the conversation in between himself and the person who called him. He went to the Peenya police station about the said receipt of threatening call. The Peenya police provided him police protection. According to him, when the said conversation was being shown and heard in the police station, he identified the same as that of accused Nos. 2 and 4. There is no mention of name of accused no.3. He states that, one Ananda arrayed as accused no.1 is his - 20 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 distant relative. His brother Ramamurthy is working at BSNL. The complainant had purchased a site for brother of accused no.1. Accused No.1 was carpenter with him. Ramamurthy was not supporting accused no.1. Then accused no.1 came along with brother and asked money and because of the character of accused no.1 he did not give money. Therefore, accused no.1 was grinding axe against him. For the first time, this PW.1 complainant speaks all this evidence in his examination-in-chief. Further, he states, the person who spoke with him by name Kamal, spoke in English. He identified accused nos.2 and 4 who were present before the Court when his evidence was being recorded.

24. This PW.1 was thoroughly cross-examined by the defence. According to him, his house is situated in an area of 40’ x 60’. From the main gate, his house is situated at a distance of 35 meters. Surrounding his house, there exists a compound. By the side of his house there exists an entrance of one Shivaram’s house. He is - 21 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 residing with his family members. According to him, on

1.2.2007, Shivaram was present in the house. As his house is situated at a distance of 35 mtrs.. from the gate, he could hear the sounds of beats. Always he keeps his doors closed. In his house, he is having television. He did not notice about coming out of Shivaram from his house on hearing the gate sound. On the day i.e. on the date of incident he went to police station between 10 and 11 p.m. When the panchanama was conducted police did not mark the wall where the bullet was hit. He denied the suggestion that there is no nexus between the incident that has taken place on 1.2.2007 and receipt of the anonymous call on 28.2.2007. With regard to the receipt of the anonymous call, he had not lodged any separate complaint. But, according to the case of prosecution, he has given a further statement before the police.

25. It is not the case of the PW.1 that identification parade was conducted and he identified these accused persons. Evidently he is not an eye witness to the said - 22 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 incident. He identified accused no.1 as the person who was grinding axe against him. The evidence of PW.1 can be accepted to the extent that, he lodged a complaint and his say regarding bullet injury sustained by Rajeshwari @ Rajashree due to firing on her by unknown persons. To that extent the evidence of PW.1 is to be believed.

26. PW.2 Ramesh Gopalakrishna is a driver and he is a scene of offence pancha. In his presence the police have seized MO Nos.1 to 11 and prepared panchanama as per Ex.P2. Though he has been cross- examined by the counsel for respondents 5 and 6 but, nothing worth is elicited about his presence at the time of conducting the panchanama by the police. To the extent of seizure of MO nos. 1 to 11 in his presence at the time of panchanama, PWs 2’s evidence is to be believed.

27. PW.3 Rajeshwari @ Rajashree or Rajashree speaks, that on 1.2.2007, at about 8.15 p.m. when she was stitching the cloths in the house, she heard the noise from the gate of their house as `Sir’ `Sir’ and she saw the - 23 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 said persons through the window. As she did not notice them, then she opened the door. At that time, she saw a black colour pulser motorcycle and they were standing near the car of the complainant. They were aged about 28 years. They enquired about complainant Kannan Naidu. She showed the house of the complainant. When she showed the complainant’s house, they fired at her and said bullet hit an her right eye. She sustained injuries and by crying she fell down. She was shifted to Sarojini Hospital and thereafter to other hospitals as stated above. She underwent surgery on 2.2.2007 and got removed the injured eye. She had lost vision of her right eye. She has been transplanted with artificial eye.

28. According to her, when she came out of the house, one Harisha i.e. appellant in SC No.730/2007 came on a motor bike and fired at her. She further states that he was accompanied with Kamal Kannan i.e. appellant in Crl.A.344/2012. It is not her statement that she identified both these accused persons. She never says that she was - 24 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 well acquainted with these two accused persons prior to the incident. For the first time, she identified these appellants as persons who came on motor bike. She identified the said pulser vehicle. It is not the evidence of this PW.3 that, police have conducted the identification parade to identify the real assailants on her. No such evidence is placed on record. She has been cross examined by the defence. She speaks that, there is distance of four feet from the gate to the stair case to reach her house. In front of the gate itself, the complaint used to reside with his family members. According to her, as it was night hours, always she used to close the door. She denied the suggestion that one cannot hear the sound from the gate. She denies the suggestion that nobody called as sir, sir etc.,

29. She being an eye witness to the incident and victim of bullet injury, she has informed about the whereabouts of the complainant and showed the house whereas, whether she could see the real assailants from at - 25 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 a distance of 35 ft. is not explained. It was 8.00 p.m. at that time. Thus, the evidence of PW.3 suffers from material particulars with regard to witnessing these accused nos. 2 and 3 who alleged to have come on a pulsar motorbike and accused Harisha fired at her. No such evidence is coming from the mouth of PW.3 except identifying the accused nos. 2 and 3 for the first time in Court. The evidence so spoken by PW.3 appears to be a tutored one and as stated by police she must have given statement. This possibility cannot be ruled out in view of evidence brought on record in the cross-examination.

30. PW.4 Gunashekhara, PW.5 P.Nagaraju, PW.6 Alappa Basappa Hombal are the panchas to various panchanamas at Exs.P3, 4 and 5. These three witnesses have been turned hostile and nothing worth has been elicited from the mouth of these witnesses. Therefore, the evidence of these witnesses is not helpful to the prosecution. - 26 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

31. PW.7 is Jayanthi Kannan is the wife of complainant and she came out of the house on hearing the bullet sound and noticed the crying of Rajeshwari @ Rajashree and went to see her. She noticed sustaining bullet injury on her right eye. Nothing worth is stated by her that accused nos. 2 and 3 are involved in the crime. She has spoken in line with evidence of PW.1 to some extent and her evidence shows that always the gate of her house is closed and the gate is about 20 ft. away from her main door. She denied the suggestion that TV was on. Except this evidence, she has not stated any other evidence. Therefore, the evidence PW.7 can be believed to the extent that, she could notice bullet injury on the person of Rajeshwari @ Rajashree.

32. PW.8 Suresh Boraiah was driver by profession and he was taken to Velur in Tamil Nadu by the Police and took him to the house of Kannan. As per the case of the prosecution, there the pulser bike and mobile sim were seized by the Police. Even accused no.1 was asked to - 27 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 produce the gun. Then they went to the house of Sudhakar. There he produced pistol and cartridge. The police prepared seizure panchanama as per Ex.P6. and 7. Thus, at instance of the said accused Kannan and Anand, no articles were seized. The place of concealment of those articles was known to the police. It was the police who took them to the house of house of Kannan at Velur, there after to the house of Ananada and thereafter, the house of Sudhakar as per the evidence of this PW.8.

33. According to the case of prosecution, because of the confession statement given by these accused persons, they went to Velur in Tamilnadu at the instance of these accused persons. But, evidence of PW.8 is otherwise. He never states that, these persons lead the panchas and police to the place where they concealed the pulser motorcycle, mobile sim, gun, live cartridge as well as pistol. That means, the evidence regarding recovery of these articles is not in accordance with Sec.27 of Indian Evidence Act, but even then, the trial Court has believed - 28 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 regarding recovery of these articles from the possession of the accused persons. The evidence is silent about whether it was accused who lead to the place where they concealed these articles. It was police who took them to Velur and other places and seized those articles so mentioned in Ex.P6 and P7 Therefore, the said recovery is hit under the provisions of Sec. 27 of Indian Evidence Act.

34. PW.9 Gangadhar was another person. He too states that, he was taken to Katpadi in Tamil Nadu by the police and there they showed the gun, cartridge etc., and police prepared panchanamas at Ex.P6 and 7. He states in the cross-examination that, he does not know the contents of Ex.P6 and 7. At the instance of the police he has put his signatures. Therefore, the evidence of PW.9 suffers from material particulars. Therefore, it cannot be accepted as a truthful evidence.

35. PW.10 is Sanjeevaiah was a Head Constable and he was deputed for nabbing the accused persons. He apprehended accused Kamal and Sudhakar - 29 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 Parasamangalam Village near a Hotel and he also apprehended accused Anand Loganatha Onathuraiah forest who were standing under a tree. They were caught hold and produced before the IO. To that extent the evidence of PW.10 is to be accepted. Even he states that, on same day itself i.e., on 17.2.2007, he apprehended Loganatha and Harisha who were residing at Ittamadu and produced them before IO. To that extent the evidence is to be believed.

36. PW.11 Nagaraja Gowda was Head Constable. According to him, he went along with PW.10 and apprehended the aforesaid accused persons and there was seizure of diaries, mobile phones etc. but, they are not produced before the Court as per the case of the defence. To the extent of he accompanying PW.10, his evidence is to be accepted. Even at the instance of the Police certain articles were seized. PW.12 Umapathi carried FIR to the Court as per Ex.P9. To that extent, his evidence is to be believed. - 30 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

37. PW.13 Dhanaraj Achar was Asst. Director of FSL, Bengaluru at the relevant time and he scientifically examined the articles which were sent to him i.e., MO Nos.1 to 11 and issued Ex.P10. To that extent his evidence is accepted. 38 PW.14 B.Raju is the PSI at the relevant time. He was deputed by his superior officers for purpose of nabbing the accused persons along with other police staff and as per the information collected, he went to Parasamangala Hotel, and apprehended Kamal and Shivaram and enquired them. As per confession statement of Ananda, they have committed the offence and from them seized certain articles mobile phone etc. According to his evidence, he went to Kukkeri in Katpadi Taluk and there he noticed presence of accused Ananda and Loganath who were standing under a tree and apprehended them. On the same day itself, they went to Ittamadu village as shown by Loganatha, - 31 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 apprehended Harisha. From him, the diary and other articles were seized. He identified them MO Nos.16 to 19. He has been cross-examined at length, but, his evidence is very much silent about where these accused have given statement before him. It is settled law that, whatever the statement given before the police is not admissible in evidence unless it is proved in accordance with law. So the evidence of PW.14 can be accepted to the extent that he apprehended accused on getting information about their availability at various places so stated by him in his examination-in-chief. 39 PW.15 B.S.Nagaraj was doctor at Suguna Hospital and he medically examined Rajeshwari @ Rajashree at about 9.15 p.m. and 12.55 p.m. and noticed the injury as stated in Ex.P14. He conducted the surgery of the injuries in the said Suguna issued issued Ex.P13 and P14. So sustaining of injuries by Rajeshwari @ Rajashree is not disputed. - 32 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

40. PW.16 Rangaswamy is the IO in this case. In all criminal cases it is stated, the IOs are the supervisors of investigations and panchas are the authors of panchanama. When the authors of the pancahanma have turned hostile, no legal validity can be given to panchanama. There must be corroboration to the evidence of the IO. Though he speaks about his role as a investigation officer, but, he states the cross- examination that injured Rajeshwari @ Rajashree has not informed him that two persons came there on the date of incident etc.. Further, he states that he had not recorded the statement of the injured in front of the doctor. He denies the suggestion that, she has not given any statement before him. According to him, on 28.2.2007, though complainant filed complaint about receiving threatening call from mobile no.9448117770 but, he has not registered a separate criminal case regarding receipt of threatening call by the complainant. What prevented this PW.16 to register a separate crime and why he connected the said incident to this incident of 28.2.2007 is - 33 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 not made clear or stated by this PW.16. Even he states that, in between 01.02.2007 and 20.02.2007, they have not arrested any accused. He denied the suggestion that on 18.4.2007, the PSI Raju has produced accused Ananda, Kamal, Sudhakar, Loganath etc., He states that the telephone no.diaries, purse, nokia mobile phone belongs to accused Kamal and Sudhakar are not produced before the Court. He denied other suggestions. Therefore, the evidence of this PW.16 suffers from material particulars to connect these persons as the real assailants on the person of PW.3 Rajeshwari @ Rajashree.

41. PW.17 Rajashekhar is the photographer who took photographs as per Ex.P15 and 16, the contents of said photograph is not denied by the defence. To the extent of taking photographs, the evidence of PW.17 is to be accepted.

42. PW.18 is N.G.Prabhakar was the Asst.Director of FSL, Bengaluru and he has examined so much of articles so produced before him and he has scientifically - 34 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 examined in all 16 articles as under and issued report as per Ex.P18:

1. The weapons in Article Nos.17, 26 and 27 are fire arms.

2.The pistols in Article Nos.17, 26 and 27 are illegally manufactured firearms.

3. The pistols in Articles Nos.17, 26 and 27 bear sings of discharge.

4. The pistols in Article Nos 17 and 26 were in working condition at the time of examination.

5. Th effective range of the pistols in Articles No. 17 and 26 is about ten yards.

6. The cartridges in Article No 18, 24 and 29 were live and the same can be fired through the pistol in Article No. 17 and 26.

7. The cartridge in Article No.19 has been fired through the pistol in Article No. 26.

8. The bullets in Article No.2, 7, 9 and 12 could have been fired through the pistol in Article No. 17 after refilling the same in a 12 bore cartridge.

9. The cartridge in Article No. 28 is a mis fired refilled ammunition

10. The pistol in Article No. 27 is not in working condinon.

11. The cartridge cases marked as 23 (a) to 23 (1) in article No. 23 and four cartridge cases marked as 31(a) to 31(d) in article no. 31 are of 7.62 x 51 mm caliber spent nifle ammunition.

12. The cartridges in article nos. 22 and 32 are of 5.56 mm caliber INSAS rifle ammunition. - 35 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

13. It is not possible to state as to whether the ammunition in article nos 22 and 32 are live are not since 5.56 caliber INSAS rifle is not available for test fining purpose.

14. The lead pellets in article no 21 and the gun powder in article no. 25 can be used as projectiles and propellants in the muzzle loading guns or refilling the same in the 12 bore cartridges.

15. The contents in article no 20 is a vice and not a refilling machine.

16. It is not possible to state as to whether the cartridge case in article no. 30 has been fired through the pistol in article no. 17 and 26 are not since the percussion cap on the same is perforated.

43. According to him, he has seen MO No.34 and it was the pistol from which firing was made. He identifies MO. No.35 single stand for pistol. MO No.29 is the 12 bore pistol etc., To show that really these bullets were seized were fired from the said gun or the pistol is not stated by any of the witnesses much less the this PW.18. In the absence of such an evidence, it can never be stated really these appellant-accused are involved in the commission of the crime. - 36 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

44. The learned counsel for the appellant by relied upon the recent judgment of Apex Court in Gireesan Nair v. State of Kerala, reported (2023) 1 SCC 180. With all vehemence he submits that, when identification parade was not conducted by the IO, it is fatal to the case of the prosecution. It is not the case of the prosecution that this Rajeshwari @ Rajashree had ample opportunity to see the accused persons and therefore, identification parade was not necessary. For the first time, she saw the accused persons but, she identified them in the court. It is quite unnatural to expect such evidence from Rajeshwari @ Rajashree identifying accused nos. 2 and 3 when she gave evidence before the Court after long gap of time. It is not the evidence placed on record by the prosecution this Rajeshwari @ Rajashree was well acquainted with these accused persons; therefore, she could identify them without any identification parade. Unless, identification parade is conducted, it is not possible for the witness to identify the accused persons. No such evidence is placed on record by the prosecution. - 37 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

45. Further, it is settled principle of law that, merely because confession statement was given by the persons, such confession of accused, cannot be acted upon on. These principles have been summarized by the Hon’ble Apex Court in Surinder Kumar Khanna v. Directorate of Revenue Intelligence, reported (2018) 8 SCC 271 at para.10 and 11. Such a statement is received under Section 30 of Indian Evidence Act. Merely because of confession is recorded, it does not mean that accused persons are really involved in the commission of offence. Such statements are not the evidence under Sec.3 of Indian Evidence Act. In para.10 and 11, the Hon’ble Apex Court has discussed with regard to scope of such confession statement. The said para. 10 and 11 of the said judgment reads as under: Singh v. State

10. In Kashmira M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] , this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] and laid down as under: (AIR p. 160, paras 8-10) - 38 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 Privy “8. Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, in Bhuboni Council Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] : (SCC OnLine PC) ‘…It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.’ Their Lordships also point out that it is ‘obviously evidence of a very weak type. … It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities’. They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in “support of other evidence”. In view of these remarks, it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except insofar as he is corroborated? 9. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588.] where he said that such a confession can only be used to “lend assurance to other evidence against a co-accused “or, to put it in another way, as Reilly, J. did in Periaswami Moopan, In re [Periaswami - 39 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 it. If the accused excluding Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77.] : (SCC OnLine Mad) ‘…the provision goes no further than this—where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.’ 10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.” 11. The in Kashmira Singh [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] was approved by a Constitution Bench in Haricharan Kurmi v. State of Bihar [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] wherein it was observed: (Haricharan case [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] , AIR p. 1188, para 12) “12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused this Court - 40 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 a Jenkins evidence person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir in Emperor v. Lalit Mohan Lawrence Mohan Chuckerbutty [Emperor v. Lalit Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588.] a confession can only be used to “lend assurance to co-accused”. against In Periaswami Moopan, In re [Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77.] Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad) ‘…where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.’ In Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC) ‘… a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the it cannot be tested by cross- accused, and examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the - 41 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.’ It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] where the decision of the Privy Council in Bhuboni Sahu case [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] has been cited with approval.” Singh v. State in Kashmira Court - 42 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012

46. The other judgments are on similar aspects . So therefore, though prosecution has lead the evidence of 18 witnesses, the panchas have turned hostile. The evidence of PW.3, the injured Rajeshwari @ Rajashree, in view of the evidence brought on record pales into insignificance. Except Rajeshwari @ Rajashree, there is no evidence placed on record that there is involvement of these appellants in the commission of crime. But, even then, the trial Court has found these accused persons guilty only by discussing the evidence of the witnesses. There is no proper appreciation of evidence by the trial Court in coming to a definite conclusion regarding involvement of these accused in the commission of crime. As rightly submitted by the learned counsel for the appellants, in both these appeals, the prosecution case suffers from material particulars and there is full of contradictions, omissions and discrepancies. The prosecution case suffers from linking evidence to establish the guilt of the accused. Though PW.3 identifies the accused, but, she was never acquainted with the accused persons. The learned trial - 43 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 Court has committed illegality and infirmity in appreciating the evidence in proper perspective.

47. In view of all these factual features, the prosecution case cannot be accepted as a gospel truth. Only on surmises and conjectures, accused persons cannot be convicted. Even presumption is not available in favour of the prosecution. Thus, the prosecution utterly failed to prove the guilt of the accused. If that is so, benefit of doubt has to be extended to the accused persons and consequentially, both the accused are to be acquitted of the charges levelled against them. Accordingly, point for consideration raised above is answered against the prosecution and in favour of the appellants in both these appeals. Resultantly, I pass the following: ORDER i. Criminal Appeal 344/12 375/2012 are allowed. - 44 - NC: 2024:KHC:41743 CRL.A No. 375 of 2012 C/W CRL.A No. 344 of 2012 ii. The judgment of conviction and sentence

28.12.2011 passed SC 730/2007 by the Presiding Officer, FTC-IX, Bengaluru is hereby set aside. Consequentially, appellants accused nos. 2 and 3 are acquitted of the charges under Section 307 read with Section 34 of IPC. Their bail bonds stand cancelled. They are set at liberty. Send back the trial Court records along with a copy of judgment. iii. iv. v. vi. Fine amount if paid by appellants, be refunded to them digitally after collecting necessary documents. vii. Send the operative portion of this order to the trial Court forthwith. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE Sk/-