- (1.) These criminal appeals have been preferred against the impugned judgment and order dated 8.9.2010, passed by the High Court of Karnataka at Bangalore in Criminal Appeal Nos.833, 855 and 864 of 2008 by which the High Court has affirmed the death sentence and confirmed the judgment and orders of the learned District & Sessions Judge dated 11/17.7.2008, passed in Sessions Case No.152 of 2005 with certain observation about the charging Sections of the Indian Penal Code 1860 (hereinafter referred to as 'IPC') by which and whereunder the appellants have been convicted under Sections 364/302/201 r/w Section 34 IPC and for the offences punishable under Section 364 r/w Section 34 IPC, sentenced to undergo RI for 7 years and a fine of Rs.25,000/- each and in default of payment of fine to undergo a further imprisonment for a period of 18 months. They have been further convicted under Section 201 r/w Section 34 IPC and sentenced to undergo RI for 5 years and a fine of Rs.10,000/- each and in default to undergo further RI for a period of 12 months. All the three appellants have been further convicted under Section 302 r/w Section 34 IPC and awarded death penalty.
(2.) Facts and circumstances giving rise to these appeals are that: A. Madhusudhan, deceased had gone from Anandpura to Sagar on being asked by his uncle Prahlad (PW.1) to collect the outstanding dues in respect of sale and purchase of ginger from K.B. Sreenath (PW.2) and K.S. Kiran (PW.12). As Madhusudhan did not turn up, Prahlad (PW.1) got worried and contacted K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) to find out the whereabouts of Madhusudhan. Both K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) informed Prahlad (PW.1) that Madhusudhan had collected Rs.2,50,000/- and Rs.1,50,000/- respectively from them at about 12.30 P.M. and left for Anandpura. Prahlad (PW.1) contacted all his relatives and friends to find out the whereabouts of Madhusudhan but all in vain. B. K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) filed a complaint FIR No. 148/2005 (Ex.P-84) in the Police Station, Sagar against unnamed persons suspecting that Madhusudhan had been kidnapped. In the meanwhile there were rumors in Anandpura that the appellants had looted the money and killed Madhusudhan as some persons i.e. Nagesh (PW.4); Sirajuddin (PW.5); Nagendra (PW.3); and Chandrashekar (PW.6) had come forward and informed that they had seen Madhusudhan, deceased in the company of appellants on 8.8.2005 at 12.45 P.M. C. In view of this, an FIR was lodged on 11.8.2005 against the appellants and one Lakshmeesha under Section 365 r/w Section 34 IPC at Police Station Anandpura. The Police tried to trace Madhusudhan as well as the appellants. It came to the knowledge of the investigating agency that the deceased was seen in the company of the appellants in a Maruti van bearing Registration No.KA-15-3112 on which "Kadala Muttu" had been written on the back side. Thus, the Investigating Officer tried to search for the said vehicle and came to know that it belonged to Jayanna @ P. Aya (A.3). D. The location of mobile phone of Jayanna @ P. Aya (A.3) was put on surveillance/watch and thereby he was arrested on 12.8.2005 at Anandpura and on the same day Rafiq @ Munna (A.2) was arrested by a separate team of police at Bangalore from the house of Felix D'Costa (PW.10). Madhuranatha (A.1) surrendered before the police on the same day. They made certain voluntary statements, on the basis whereof, recoveries were made. Jayanna @ P. Aya (A.3) took the police and others persons (recovery witnesses) to the forest area and pointed out to a place wherefrom the dead body was exhumated. Only the trunk of the body was found as the head had been chopped off and thrown in the nearby Nandi river. Prahlad (PW.1), Srinivasa (PW.15), Shivananda (PW.16), Devaraja (PW.17) and K. Keshavamurthy (PW.22) witnessed the said recovery and identified the corpse. However, in spite of the efforts made by the police, the head could not be recovered. Immediately thereafter recovery of most of the looted amount had been made from the appellants. A mobile phone belonging to Jayanna @ P. Aya (A.3) purchased from the loot amount was also recovered. A gold ring belonging to the deceased was given to the Investigating Officer by Felix D'Costa (PW.10) from whose house Rafiq (A.2) had been arrested in Bangalore. E. After completing the investigation, chargesheet was filed against the appellants and trial commenced. F. In the court Nagesh (PW.4) and Chandrashekar (PW.6) corroborated the prosecution case to the extent that they had seen the deceased in the company of all the three appellants on 8.8.2005 at about 12.45 P.M. Pranesh (PW.11) and Sadananda (PW.13) supported the case of extra-judicial confession as made by Madhuranatha (A.1) before (PW.11). A.1 had also approached PW.13 for help to contact the police and disclosed that he had committed the murder of Madhusudhan alongwith Rafiq (A.2) and Jayanna @ P. Aya (A.3). G. Recovery of the dead body was supported by Shivananda (PW.16) and Devaraja (PW.17). K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) had supported the prosecution case deposing about payment of money to Madhusudhan on 8.8.2005 at about 12.45 P.M. to the tune of Rs.4,00,000/-. The issue of motive was proved by Prahlad (PW.1), K.B. Sreenath (PW.2), Felix D'Costa (PW.10), Pranesh (PW.11), K.S. Kiran (PW.12) and Sadananda (PW.13). The dead body was identified and the evidence in respect of recovery of the dead body was given by PWs.1 and 22. The same stood affirmed by the report of the DNA test. The Investigating Officer Bhaskar Rai (PW.47) proved all the recoveries and furnished the details as to how the investigation was carried out and how the arrest of the appellants was made. H. On the basis of the above, the Trial Court convicted and sentenced the appellants under Sections 364, 302, 201 read with Section 34 IPC. No conviction was made under Sections 120A or B IPC. I. Aggrieved, the appellants preferred appeals before the High Court which have been dismissed by the impugned judgment and order with respect to death sentences while maintaining the other sentences as well. However, the court made a passing observation that the charge should have been framed under Section 364A IPC instead of Section 302 IPC. Hence, these appeal.
(3.) Mr. N.D.B. Raju and Mr. Amit Kumar, learned counsel appearing for the appellants have agitated all the issues which had been raised on behalf of the appellants before the Trial Court as well as before the High Court and have taken us through the evidence recorded before the Trial Court. According to them there is nothing on record to show that the death of the deceased was homicidal or he was even abducted by the appellants, what to talk of causing death of deceased Madhusudhan. In the absence of any material on record to prove that his head was chopped off by any of the appellants, their conviction is bad, particularly in view of the fact that there is no evidence to show that the appellants had buried the lower portion of the corpse in the forest and threw the head in the flowing river. More so, the High Court had taken a view that the conviction under particular provisions of IPC by the Trial Court was not justified, meaning thereby that the Trial Court did not frame the charges properly. Even the money shown to have been recovered from the appellants had been planted and not actually recovered. Most of the witnesses examined by the prosecution are relatives of the deceased. There are material contradictions in the deposition of the witnesses and a large number of witnesses to some of the recoveries have been withheld. Only the police personnel have been made the recovery witnesses though large number of persons had gathered and were available for being made the recovery witnesses. The video prepared at the time of exhumation of the dead body was not presented in the Trial Court and that Jayanna (A.3) on whose behest it is alleged that the dead body was recovered is not shown in the photographs taken at the time of exhumation. One of the alleged witnesses of recovery i.e. Pranesh (PW.11) had been dis-believed by the Trial Court and another witness i.e. Sadananda (PW.13) has been dis-believed by the High Court. They are the witnesses of extra- judicial confession as well. In such a fact-situation, none of the said witnesses are trustworthy. Under no circumstance the appellants could have been awarded the death sentence. Thus, the appeals deserve to be allowed.;