{"id":245931,"date":"1999-07-05T00:00:00","date_gmt":"1999-07-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-m-ibrahim-alias-bava-and-ors-vs-state-of-karnataka-on-5-july-1999"},"modified":"2018-01-06T09:14:39","modified_gmt":"2018-01-06T03:44:39","slug":"k-m-ibrahim-alias-bava-and-ors-vs-state-of-karnataka-on-5-july-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-m-ibrahim-alias-bava-and-ors-vs-state-of-karnataka-on-5-july-1999","title":{"rendered":"K.M. Ibrahim Alias Bava And Ors. … vs State Of Karnataka on 5 July, 1999"},"content":{"rendered":"
Karnataka High Court<\/div>\n
K.M. Ibrahim Alias Bava And Ors. … vs State Of Karnataka on 5 July, 1999<\/div>\n
Equivalent citations: 1999 (2) ALD Cri 773, 2000 CriLJ 197<\/div>\n
Author: M Saldanha<\/div>\n
Bench: M Saldanha, N Veerabhadraiah<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 M.F. Saldanha, J.  <\/p>\n
 1. The first of these three appeals, has been preferred by the five accused persons in Sessions Case No. 9\/95 which was tried by the learned Addl. Sessions Judge, Kodagu. The Criminal-Appeal 718\/96 has been preferred only by accused No. 2 and is a Jail Appeal , Crl. Appeal No. 835\/96 has been preferred by accused Nos. 4 and 5 and is also a Jail Appeal. This Court appointed learned Advocate Mr. Jagadish Patil as amicus curiae in Crl. A. 835\/96. Suffice it to say, that all the accused persons have been duly represented before us. The five accused originally stood charged with an offence punishable under Section 302, IPC and briefly stated, the allegation was that acting conjointly, these persons are alleged to have hired ajeep bearing No. KA12M 1474 on the night of 2\/3-10-94 and that shortly thereafter they strangulated the driver of the jeep by the name of Yusoof and threw his body by the roadside at Nallihudikeri village and that they thereafter made away with the jeep. It is also alleged that the wrist watch of the deceased was taken away and it is the prosecution case that the wrist watch in question as also the jeep and the stepney of the jeep, the jack, the lever and the spanner were all recovered pursuant to statements made by the accused persons while they were in custody. The prosecution relies very heavily on the recoveries because essentially, this is a case of circumstantial evidence in so far as there is no eye-witness to the actual commission of the act of strangulation. The accused came to be arrested on 15-10-1994 and after the completion of the investigation, they were put on trial before the Sessions Court. The prosecution examined as many as 37 witnesses, many of whom are formal witnesses. The prosecution also relied on Exs. P-1 to P-26 as also the material objects MOs. 1 to 14. It is relevant for us to mention here that having regard to the complexion of the case, the charge was thereafter altered to one under Section 396, IPC. The learned trial Judge found all the five accused guilty of the offence with which they were charged, convicted them and sentenced them to suffer rigorous imprisonment for life. The present set of appeals are directed against that conviction and sentence.\n<\/p>\n
2. At the hearing, the accused have been represented by learned advocate Mr. H. S. Chandra Mouli and the learned advocate Mr. Jagadish Patil, appointed amicus curiae and the State had been represented by the learned Senior Prosecutor Mr. B. R. Nanjundaiah. The record of the case is relatively heavy and we have been very ably assisted by the learned advocates who have represented the two sides and as we shall presently point out, apart from an elaborate debate on several of the factual aspects, the case does involve several points of law which have also been well researched and expounded.\n<\/p>\n
3. Mr. Chandramouli did point out to us at the commencement of his submissions that the offence punishable under Section 396, IPC is a far more serious offence than the one of dacoity with which the accused were originally charged and he therefore submitted that the alteration of the charge at a subsequent stage of the trial would vitiate the entire proceeding. We have heard the learned counsel on both sides as regards this aspect of the case but we do not see much justification for this grievance being made. It is well settled law that if the charge is altered, that the accused must be afforded a full opportunity of meeting that charge even if this involved recalling of the witnesses because no prejudice should ultimately occur. This is the ultimate test that emerges through an interpretation of the relevant provisions and the case law and from that point of view, we have carefully ascertained first of all as to what was the original charge and to what was the altered one. One of the original charges was under Section 302, IPC which is as serious an offence as the one contemplated under Section 396, IPC in so far as the quantum of punishment is concerned. We have also taken cognizance of the fact that the accused were originally charged also with an offence under Section 392, IPC. They were therefore put on adequate notice of both the offences namely the offence of murder and the offence of daeoity. In this background, since the learned trial Judge very rightly came to the conclusion, that the proper charge would be under Section 396, IPC and not Section 302, IPC because this is a case in which a death has occurred in the course of the commission of a daeoity and furthermore, since the charge under Section 392, IPC would become redundant once Section 396 is invoked, we do not see any prejudice of any type that could have been caused to the accused. The complexion of the charges has remained unaltered and furthermore, at no stage was any grievance made before the trial Court and under these circumstances, we see no ground on which this Court can uphold this particular plea. We do concede that in serious situations such as this one if the learned counsel representing the accused had been able to demonstrate to us even at this stage that any real prejudice has occurred to the accused, this Court would certainly have passed appropriate orders for purposes of redressal of that situation. As the records stand however, we find the grievance canvassed is only academic in nature and therefore does not deserve to be upheld.\n<\/p>\n
4. The prosecution contends that on the night in question, the five accused met the deceased at the Siddapura Taxi Stand and that they engaged his services after which they got into his jeep bearing registration No. KA 12M 1474 and drove away from that place. In connection with the Ganesh festival a music programme was going on that night at Siddapura which possible explains why persons were around at that particular hour. PW. 17 claims to have seen the five accused at the time when they engaged the services of the deceased Yusoof who was driving the jeep which in turn belonged to PW. 15 Abdul Haaji. This person is the brother of PW. 1 K.T. Basheer. According to the prosecution, after the jeep had proceeded some distance the accused used a yellow colour nylon rope with.which the driver Yusoof was strangulated, his body was dumped by the roadside and the accused persons made away with his wrist watch and the vehicle. The prosecution alleges that they disposed of some of the items at Nelamangala namely the wrist watch, the stepney, the jack, the lever and the spanner and that they obtained some small sums of money for these items. The prosecution further alleges that the accused persons are supposed to have travelled all the way to Bombay in an attempt to dispose of the vehicle that they did not succeed in doing so and that they therefore came back to Andhra Pradesh to a place called Nakarikal where the jeep was disposed of obstensibly for a sum of Rs. 2000\/-. A-l and A-2 were arrested on 15-10-1994, A-3 on 21-4-94 and A-4 and A-5 on 21-10-94. The police contend that the voluntary statements of the accused persons came to be recorded. It is further contended that at the instance of A-1 the police party recovered the stepney under mahazar Ex. P-6 on 19-10-1994 at 9 a.m. in the presence of PWs. 10 and 11. Similarly, pursuant to a voluntary statement made by A-2 on 17-10-94 the jeep was recovered at Nakarikal in the presence of PWs. 1, 6 and 7. As far as A-3 is concerned, it is alleged that at his instance the three items MO. 7 the jack, MO. 8 the lever and MO.9 the spanner were recovered under Ex. P-8 and that this was witnessed by PW. 13. As far as A-4 is concerned, it is alleged that pursuant to a voluntary statement made by him, a knife which is MO. 6 nylon rope were recovered on 21 -10-94 and we have on record the evidence of PW. 12 who has identified this piece of rope. We need to clarify here that this is a piece of nylon rope which is supposed to have formed a part of the rope used by PW. 12 in his bus which was parked for the night in Siddapur and he contends that a few days earlier it was found that a piece of the rope had been cut off. He has identified the piece of rope and it becomes incriminating because this is the yellow nylon rope with which the deceased had been strangulated. As far as A-5 is concerned , it was pursuant to a voluntary statement made by him that MO. 10 which is the wrist watch was recovered and he is supposed to have given it to PW. 13 for a sum of Rs. 70\/-. The watch in question was later identified by the wife of the deceased Yusoof who is PW. 19 Jameela who has in turn stated that: the watch was the one which was normally worn by her husband. The prosecution relies very heavily on these recoveries and in fact,” the entire case revolves around this evidence because it is on the basis of these recoveries that the trial Court has hold the accused guilty of the offence punishable under Section 396 IPC. The trial Court has placed equally heavy reliance on the evidence of PW. 17 in so far as he has contended that the accused was last seen in the company of the deceased at about 2,30 or 3 a.m. at Siddapura which ultimately turns out to be the last time that the deceased was seen alive and it is also equally significant to point out that on a re-creation of the sequence of all events it transpires that this was very shortly before the deceased must have been killed.\n<\/p>\n
5. Mr. Chandramouli, learned counsel who represents the accused persons commenced his submissions by raising a preliminary point. He pointed out to us that on the present record as it exists the prosecution has brought forward evidence for purposes of establishing that at the instance of the accused, property of an incriminating nature was recovered and he submits that assuming without admitting that this is good evidence that if could at the very highest bring home the charge under Section 411, IPC and that the learned trial Judge was in error in having convicted the accused of the main offence which includes the act of killing the deceased. Learned counsel emphasised the point that there is admittedly no evidence on record as to how and under what circumstances Yusoof who was last seen getting into the jeep at Siddapura ultimately came to be killed. His submission is that unless the prosecution can adduce sufficient direct or circumstantial evidence to connect the accused with the act of murder or the act of taking the life of the deceased Yusoof that the Court cannot hold that the charge under Section 396, IPC is established merely on the basis of recovery of what he terms as stolen property. His submission was that even assuming that the liability in law fastens to the accused as the prosecution claims to have established that the property belonging to PW. 18 and to the deceased was recovered at the instance of the accused and is alleged to have been disposed of by them that this will not ipso facto mean that they are participants in the murder. Obviously, the learned counsel was adverting to the fact that this is one of the cases in which there is not even the slightest piece of direct evidence adduced by the prosecution with regard to the aspect of killing. Again, what the learned counsel submitted was that even though there is a serious challenge to the validity and acceptance of the evidence of PW. 17 that, even if it is demonstrated that the accused persons were last seen with the deceased that. the prosecution has not been able to fix even the approximate time when the death had taken place and that therefore, the Court ought to give the benefit of doubt to the accused in so far as there may be ever so many possibilities with regard to the circumstances under which the deceased was killed and the person or persons who are responsible for it.\n<\/p>\n
6. The learned S.P.P. vehemently refuted this entire argument and he has submitted that the point is required to be considered by the Court not in theory or in a vacuum but in relation to the facts and that too, the established facts in this case. Firstly, he emphasises the time factor namely that it was as late as about 2-30 or 3 a.m. in the morning that PW. 17 saw the five accused persons whom he has identified leaving in the jeep in question along with the deceased. He has then taken us to the evidence of PW. 18 Philomina Appaiah who is a resident of the area where the body was found and it is demonstrated that there is absolutely no challenge to her statement which is to the effect that she found the body of the deceased thrown by the roadside close to where she resides and that this was at about 10 or 10-30 a.m. This necessarily narrows the gap in so far as according to the learned counsel the deceased had not travelled very far from Siddapura to the point where he was found murdered. Secondly, that it was by the side of the highway itself which is the normal route which the jeep had taken and thirdly, that the vehicle in which the accused and the deceased had started out was recovered at the instance of the accused and lastly he submits that the main incriminating factor is that the wrist watch of the deceased was taken away from his person and recovered at the instance of the accused. Learned counsel submitted that before an argument can be advanced that the two acts must be separated that it will have to be demonstrated that there is nothing to inter connect them inextricably and he proceeded to contend that if the prosecution can show that within a short period of time the accused persons who left in the company of the deceased have no explanation as to where they parted company and no explanation as to how they came into possession with a personal item such as the writ watch and the very vehicle in which they were travelling that the Court will have to draw the legitimate inference from the evidence that the acts were inseparable and that the persons who committed all these acts or offences are one and the same. Learned counsel is right when he submits before us that it is not open to advance a theoretical argument to the Court that many possibilities could be there. In situations such as the present type, the law requires that where the onus has shifted to the accused the accused is required or duty bound to place before the Court a sufficiently valid explanation or theory on the basis of which the Court can reasonably hold that even if the accused are connected with one part of the offence or one set of acts that they need not necessarily be connected with the rest. The submission canvassed by the learned Section P.P. is that in the present set of sequence within a limited period of time where the acts are so closely interconnected and inseparable that the nexus or liability is inevitable that it presents a situation from which there can be no escape. Suffice it to say at this stage, that on the present set of facts we are not prepared to hold, particularly since there is total silence on the part of the accused with regard to any plausible explanation as to where they parted company with the deceased and how they came in possession of the incriminating property, that they were unconnected with the entire set of events. We shall presently analyse the evidence in brief and record our findings thereon but as far as the legal submission canvassed by the appellants’ learned counsel is concerned, in our considered view it cannot be upheld.\n<\/p>\n
7. Before proceeding to analyse the salient parts of the evidence, we consider it essential to briefly recount the ingredients of Section 396, IPC.The Section reads as follows :\n<\/p>\n
8. “If any one of five or more persons who are conjointly committing dacoity, commits murder in so committing dacoity, every one of these persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.”It will be self-evident that where there are several participants, that the Section veiy clearly prescribes that the persons responsible for the acts shall be individually liable even though the offence was committed conjointly. Under this Section, even though the principal object of the offence constitutes the commission of a dacoity, the law takes cognizance of a situation in which a murder is committed in the course of the same transaction. For purposes of determining the culpability, the Court would first have to conclude that a dacoity was committed, that the accused persons before the Court who had participated in the act had functioned or acted conjointly and for purposes of establishing these ingredients, what is of paramount importance is that the prosecution will have to establish in the first instance the identity and interconnection between the property and the accused persons. Equally necessary is the fact that their participation in the dacoity will have to be proved and as invariably is the case, the recoveries are of crucial importance because cases of this category are seldom witnessed and therefore heavily depend on circumstantial evidence. In this context, we have been guided by the observations of the Supreme Court  (Shambhudayal v. Subhashchandra) where the Supreme Court; while considering the ingredients of Section 396, IPC held that the identification is of utmost consequence and where identification was doubtful and more importantly, where the Court was not satisfied with the conclusiveness of the evidence relating to recovery of the clothes that the accused were entitled to an acquittal. It is now well settled law that in cases of this category where it is demonstrated that the accused persons were last seen with the accused or where it is demonstrated that they were seen close to or at the scene of offence or leaving the scene of offence but more importantly, where it was demonstrated that the property that was involved in the dacoity was found either in their possession or recovered at their instance, that the ingredients of Section 396, IPC are satisfied and that it was not tenable to contend that the lesser charge of being in possession of stolen property was alone made out. The Supreme Court has repeatedly pointed out that where personal items belonging to the deceased form part of the property recovered that the nexus becomes much stronger and that the accused in all such cases will have to satisfy the Court that the possession of the property was under circums tances other than through participation in the dacoity. To summarise, the Supreme Court took the view that where the watch belonging to the deceased was recovered from the accused that the inference was not that he was only responsible for the offence of robbery but that he was liable both for the murder and the robbery.\n<\/p>\n
9. As far as the evidence under the first head is concerned, Mr. Chandramouli seriously attacked the evidence of PW. 17 who is virtually the star witness for the prosecution. Learned counsel submitted that this evidence has been contrived by the prosecution. P.W. 17 Hassainar is a driver. He is a resident of Siddapura and according to him he knows not only the accused before the Court who were working as coolies in that area but that he also knows the deceased Yusoof. His evidence is very clear in so far as he identifies the date of incident as the night on which the Gowri festival programme was going on. He has stated in his evidence that A-l and A-5 were sitting in the front of the jeep by the side of the deceased and that A-2, A-3 and A-4 were sitting in the back of the jeep. He gives the time as around 2-30 a.m. and he also states that the light inside the jeep was on. According to him he asked the deceased as to where he was going and the deceased stated that he was going to Nellihudikere to leave the accused and that he would return thereafter. He has also given the jeep number as KA 12 M 1474 and he has identified the jeep which was produced before the Court. He states that on the next day he came to know about the dead body of Yusoof which was lying at Abyatha. He went there and he saw the body with a ligature mark around the neck. He has also identified MO. 1 which is the rope. This witness has been cross-examined at considerable length but what we need to record is that in the first instance his evidence appears to be perfectly normal and natural and has remained unshaken despite the cross-examination. Quite apart from this, the most important aspect of the case is that the fact that he is a resident of that area and that he knows the accused persons has not been challenged at all. In fact, in the cross-examination it has come out that he also knows their names and where they reside and what occupation they do. The only serious challenge that has emerged is that this witness was asked as to why he has not stated to the police the names of the accused person. The witness has denied this suggestion and strangely enough, the cross-examination has not been carried forward as a result of which it is not very clear as to. what precisely the situation is. The fact, of the matter is that it is established that the witness knows the accused persons and that he has identified them, he is also personally known to the deceased and his evidence with regard to the fact that the five accused were seen in the jeep along with the deceased Yusoof at about 2-30 a.m. at night is virtually established. It is true that the appellants’ learned counsel submitted that there does not appear to be any valid ground for this person to have been around at that late hour of the night and his submission was that in order to falsely link the accused with the offence that the police have fabricated this evidence. As indicated by us earlier, the line adopted in cross-examination has hardly disputed the presence of this witness at that time. He has also given the reason for it in so far as he is also a driver and according to him after he had finished his work for the day he was making his way home. We also take note of the fact that there was a festival going on, on that night and this would be an additional reason for the persons such as the jeep drivers to remain around that place because they would obviously hope for additional business. Whatever be the position, on a careful scrutiny of this evidence we see no ground on which it can be either discarded or called into question. The learned trial Judge has relied on this evidence and very rightly so and we are of the view, that after an independent review that it is sufficiently good and strong evidence to establish that the accused persons were last seen with the deceased. Also, the most important ingredient of identification is thereby established.\n<\/p>\n
10. As far as the other head of evidence relating to the recoveries is concerned, the learned trial Judge has analysed it witness by witness and item by item and after a scrutiny, has come to the conclusion that this evidence is acceptable. As far as A-l is concerned, the recovery of the stepney is attributed to him. Appellants’ learned counsel submitted that: the place of recovery is a long way off from the scene of offence or from Siddapura and he has submitted that this alone is sufficient to cast some doubt. Secon dly, PWs. 10 and 11 seek to indicate that it was A-2 who had given the stepney and not A-1. Appellants’ learned counsel submitted that on this ground alone, this evidence will have to be discarded because the identity of the person who left the property is in doubt. We have taken note of the fact that the person who left the stepney with PWs. 10 and 11 had obviously spent a very short time there and the learned trial Judge who had the benefit of presiding over the trial has given a perfectly valid reason for the plausible mistake of identity. He has pointed out that A-1 and A-2 are persons of more or less the same age and that they could easily be mistaken for each other and that this is the reason why the could have made the small mistake. The fact remains that pursuant to the voluntary statement the police did go to that place and they did recover the item in question. The other head of cricitism from the appellants’ learned counsel is that the stepney is after all a wheel of a vehicle and there could be hundreds and thousands of similar wheels without any special distinguishing marks. Fortunately, we have a valid explanation on the question of identity of the property because the witness PW. 10 has very clearly stated that when he purchased the stepney, he had stuck a piece of paper indicating its identity. Apart from this, the owner of the vehicle PW. 17 has identified the property and this identification has not been challenged. Taken collectively therefore, the finding of the trial Court with regard to the recovery of the stepney is correctly held to be established.\n<\/p>\n
11. As far as A-2 is concerned, the vehicle namely the jeep was recovered by the police from a garage at Nakarikal in Andhra Pradesh. PW. 8 HC 101 has deposed to the effect that pursuant to the voluntary statement, the police along with PW. 1 had gone to this place in Andhra Pradesh arid that the accused pointed out a garage by the name of Kanakadurga Mechanical works which is owned by PW. 6. The jeep was recovered from that spot. According to him, the registration number of the jeep read MH 02 1785 and not KA 12 M 1474 which was its original number. The witness states that the police checked up the engine number and the chassis number from the documents relating to the vehicle and thereby identified the jeep as being the same one which was driven by the deceased Yusoof on the fatal night. The vehicle was seized and brought back. As far as this evidence is concerned, appellants learned counsel submitted that the Court will have to discard the evidence completely because PW. 6 and PW. 7 namely the persons from that garage have virtually turned hostile. The submission is that the recovery evidence becomes extremely doubtfuMf the Court were to rely only on the evidence of the police or an interested party. In this regard, the law is well settled and we only need to draw attention to the ratio of the decision reported in AIR 1978 SC 1511 :(1978CriLJ 1531) where the seizure witnesses were hostile and the Supreme Court held that where the evidence of the investigating officer was sufficiently convincing and where the voluntary statement inspired confidence in the Court that the recovery evidence need not be rejected. As far as the principle goes, we need to further elaborate that in cases where the prosecution relies on recovery evidence, the Court needs to take cognizance of the fact that the party from whom the property is recovered would inevitably make an attempt to disclaim all knowledge or liability and that this is no ground on which the recovery evidence should either fail or be discredited. In the present instance, we have, scrutinised the evidence of PW. 8 and we are more than satisfied that the trial Court was fully justified in accepting this evidence.\n<\/p>\n
12. As far as A-3 is concerned, it is alleged that pursuant to a voluntary statement made by him, the three items M.O.8 jack, MO. 9 lever and MO. 10 spanner were recovered under the inventory P-8 from Siddanahosahalli Grama, Bangalore Taluk. The prosecution has relied on the evidence of PW. 13 Akrama Pasha who is the person from whom this property was recovered. He has clearly deposed to the fact that he paid Rs. 50\/- to A-3 for the three items and that A-3 had told him that he would take the items away after sometime on repayment of the amount of Rs. 50\/-.\n<\/p>\n
13. At this stage, we need to deal with the recovery of the watch which is MO. 10. This witness PW. 13 states that on the same day A-5 had handed over to him an Alwyn Quartz Wrist Watch and asked him to pay Rs. 200\/-. He has stated that he only had Rs. 70\/ – which he gave to A-5 who in turn stated that he would come after some time, repay the money and take the watch. The witness has identified the watch in question. More importantly, this witness has identified A-3 as the person who left the items MOs. ,8 to 10 with him and he has seen A-3 and he has also identified the person who left the watch with him as being A-5. This witness has also pointed out in his evidence that he knows A-2 who used to come to Nelamangala to the house of his elder brother and he states that it was A-2 who brought the police party to the house of this witness and pointed out the place to him. In cross-examination, some attempt was made to dispute the identity of the four items that we have referred to but the defence has been unsuccessful in demolishing this evidence. The witness has clearly stated that it was hardly for a few days that the items were left with him and the police came for them and the witness has also indicated that MOs. 7 to 9 were kept by him aside in a particular place because A-3 had stated that he would come back for them. This clearly establishes the identity of MOs. 7 to 9 which in turn had been again identified by PW. 17 the owner of the jeep. The appellants’ learned Advocate did once again submit that items of common use in motor vehicles such as a jack, a lever and a spanner have no separate distinguishing mark and that the Court must take cognizance of the fact like the stepney, that one of these would easily pass for another, and that therefore the Court should not attach any special importance to the recovery. The prosecution has been careful enough to establish the nexus between these items and the vehicle in which the deceased was travelling because PW. 17 has not only identified the items, which identification has not been disputed, but he has also stated that these items were missing when the jeep was recovered and that they are the very items which were in the jeep when it was handed over to Yusoof. As far as the watch is concerned, the wife of the deceased PW. 19 Jameela has identified this as the watch that was on his person. Once again, the submission was that any watch of this make would resemble any other one. If the defence seriously disputed the Identification, the time to challenge it was when PW. 19 was in the witness box and had this been done she would have indicated the reasons on the basis of which she had identified the property. In the absence of a challenge, this evidence has virtually gone uncontroverted.\n<\/p>\n
14. As far as A-4 is concerned, pursuant to a voluntary statement the police recovered M.O. 6 which is a knife which was used for cutting the rope MO. 11. The prosecution has examined PW. 16 who is the conductor of the bus in question. This witness has given the bus number as MYZ 5507 and he states that the bus used to halt at Siddapura for the night and that a nylon rope of yellow colour was used to tie the tarpaulin. He, states that on the festival night the bus was parked near the period bunk. According to him, this rope was cut at night while the bus was parked there. He has identified the rope MO. 11 and the rope which is the MO. 1 which is the other piece of the rope or the piece that had been cut off and which was found tied to the neck of the deceased. The usual line of cross-examination has been followed with regard to this witness and it was submitted before us that this is clearly contrived evidence which has been produced by the police in an attempt to link the accused with the offence. We find it difficult to accept this head of criticism because we have taken note of the fact and the trial Court has also based considerable importance on one fact, namely that the two pieces of rope match perfectly. The smaller piece namely the piece that had been cut off was the rope with which the murder was committed and it is therefore extremely incriminating. We need to record here that the recovery of the watch and the rope at the instance of the two accused inextricably links the accused with the murder of the deceased.\n<\/p>\n
15. The prosecution has relied on the evidence of PW. 27 and PW. 35 in support of the contention that the accused had purchased a paint brush as also black and white paint. It is true that this evidence was adduced by the prosecution in order to establish that the accused had changed the registration number of the jeep in question by over painting number plate. We have looked at this evidence but we do not propose to attach much importance to it because this circumstance does not really carry the prosecution case very much further.\n<\/p>\n
16. As far as the head of recovery evidence is concerned, we have summarised it above. We have scrutinised both the documents and the oral evidence. We have heard the learned counsel on both sides and in sum and substance we see no ground whatsoever on which this evidence can be faulted. The learned trial Judge has relied on this evidence and we are of the view that this has rightly been done. We are conscious of the fact that the charge is a serious one. We are also conscious of the law relating to circumstantial evidence which postulates that each head of evidence or each link in the chain has to be individually established and it is for this reason that we have spent considerable time in analysing the evidence item by item and witness by witness in order to satisfy ourselves that it totally passes the test of scrutiny. Having completed that exercise, we are firmly of the view that the finding of the trial Court as far as these heads of evidence are concerned requires to be accepted.\n<\/p>\n
17. We need to record here that the appellant’s learned counsel did point out to us that if the recovery memos relating to the first two heads are concerned namely the stepney and the jeep are compared that it will be seen that the police recovered the stepney on 19-10-99 and that as far as the jeep is concerned, it was recovered several hundred kilometres away in Andhra Pradesh within less than twenty four hours.Mis submission is that this clearly indicates that, both the so called recoveries become doubt ful because it is not possible to hold that one of them is acceptable and not the other one. We cannot as a rule of procedure permit this challenge at this point of time because the witnesses who have deposed to the recovery have hardly been challenged on this point. Specifically, as far as the police officer is concerned if it was the case of the defence that it was impossible for the police to have covered both these places so far apart in such a short period of time, then the distance between the two places should have been put to the investigating officer and he should have been given an opportunity to clarify. We cannot, as of now, presume that it was physically impossible for the distance to have been covered.\n<\/p>\n
18. Another submission that was put forward on behalf of the appellants’ is that PW. 17 is quite categorical about the feet that he last saw the deceased at about 2-30 a.m. and that on the following afternoon he had gone to the spot where the dead body was found despite which there is no reference in the inquest panchanama to the presence of PW 17. The evidence of PW. 17 is sought to be discredited on this ground. We are not much impressed by the submission for the reason thai PW. 17 has not been asked a single question about this and secondly, several persons would have come to that spot out of curiosity or for any other reason and the fact that there is no reference to PW. 17 would not in any way detract from the veracity of the inquest panchanama. Mr. Chandramouli submitted that he is not: as much concerned with the aspect of whether the name of PW. 17 or his presence was noted but his contention is that when PW. 17 knew the deceased and when he had found him murdered and came to the spot and the police were already there that it is inconceivable for PW. 17 not to have told the police about what had transpired on the previous night. He submits again that this conduct on the part of PW. 17 clearly establishes that he could not have seen the accused and the deceased on the previous night and that he is a got up witness. Again, we need to record that we cannot discredit the evidence of PW. 17 on the basis of such an argument because the defence ought to have put it directly to PW. 17 when he deposed about: going to the scene of offence and seeing the dead body and the defence ought to have confronted him with the fact that if he knew in whose company the deceased had left, the previous night, he could have as well gone to the police and told them. In the absence of the defence having done this, it is not open to the defence and that too at this late stage, to raise this contention.\n<\/p>\n
19. The appellants’ learned counsel presented a substantial challenge to the evidence relating to recovery in so far as he drew our attention to the provisions of Section 27 of the Evidence Act and he submitted that the Supreme Court in the decision reported in 1995 AIR SCW 3485 : 1995 Cri LJ 3992 (Jackaran Singh v. State of Punjab)<\/a> has at paragraph 8 observed that the absence of the signatures or the thumb impression of the accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement. The Court had ultimately rejected this evidence on the ground that the signature or thumb impression was not contained in that document. We need to record one very important fact that the supportive evidence was totally absent in that case in so far as the recovery panchas had not been examined. All that was before the Court was the mere document and on the facts of that document the Supreme Court held that it could not be used against the accused. The appellants’ learned counsel submitted that an earlier Bench of this High Court in the decision  has followed this decision and he submitted that under Article 141 of the Constitution the law as laid down by the Supreme Court is binding on this Court and that therefore the decision ought to be applied to the facts of this case and the whole set of recovery memos are liable to be discarded. The learned S.P.P. drew our attention to another Division Bench judgment of this Court in Criminal Appeal No. 302\/96 dated 4-12-98 wherein, the learned Judges considered the facts of the Supreme Court decision referred to supra, the ratio laid down in that case and they have also held that the facts of the case before the Supreme Court materially differ from the situation in the appeal that was being considered by them and that consequently, the Court would have to go by the provisions of Section 27 of the Evidence Act and be guided by the mandatory provisions. We need to record here that Section 27 of the Evidence Act does not postulate that a voluntary statement must be signed by the maker of that statement or that the thumb impression must be affixed to it. The Supreme Court on the special facts of the ,case before it and in the circumstances indicated by the Supreme Court and for the reasons set out in that judgment desired that the signature or thumb impression ought to have been on the statement as that would inspire confidence in the mind of the Court since there was no supportive evidence. In the present instance the position is entirely different in so far as we have the evidence of a host of other witnesses, the persons who had accompanied the accused, the Investigating Officer, the persons from whom the recoveries were made and this evidence taken in conjunction with the contents of the memo incorporating the voluntary statement are sufficient to bring the statement within the ingredients of Section 27 of the Evidence Act. Also, we need to record that the earlier Division Bench of this Court had upheld the submission canvassed by the learned S.P.P. who pointed out that in the course of investigation the voluntary statement that comes to be recorded is no different: from a statement under Section 162, Cr. P.C. which in turn prohibits the taking of the signature of any person examined and whose statement is reduced into writing during the course of the investigation. The proviso to Sub section (1) provides for the use of that statement for a limited purpose under Section 165 of Indian Evidence Act. However,  Sub-section (2) of Section 162, Cr. P.C. makes it clear that in the case of a statement under Section 27 of the Evidence Act obtaining the signature will not affect the statement. The Bench went on to observe that it does not say that the signature of the accused on a disclosure statement is a must. What the Apex Court has said according to our understanding in the matter is that in a given case and in particular circumstance if the disclosure statement does not contain the signature that would detract materially and would affect the authenticity and reliability of the disclosure statement. The Bench went on to hold that the position which obtained and the circumstances that were present in the case before the Supreme Court were entirely different to the facts of the appeal before this Court. As indicated by us earlier the same position obtains as far as the present set of appeals are concerned. Also, if is well settled that particularly in criminal cases, that decisions hold good for the individual facts of that particular case. We need to mention in passing that the two learned counsel cited several other decisions before us on a number of aspects of the case but all of these concern the position in law that is well established and we do not propose to recount them in detail as that is unnecessary.\n<\/p>\n
20. In totality therefore, we hold that the identity of the accused as the persons in whose company the deceased was last seen is fully and satisfactorily established by the prosecution. We also hold that the prosecution has established both from the medical evidence and from the evidence of PW. 18 that the incident had taken place very shortly after this and furthermore, the series of recoveries at the instance of the accused particularly the watch and the rope conclusively and fully establish the complicity of the accused in the offence. We need to record here that this may be a case in which there is no direct eye-witness evidence but that is unnecessary in so far as the presence of the five accused and the recoveries of different items of art incriminating nature from each of them are sufficient to establish that all of them conjointly participated in the offence. We therefore uphold the findings of the trial Court and confirm the conviction.\n<\/p>\n
21. On the question of sentence, the appellants’ learned counsel advanced a plea to the Court that the Court has the option of awarding different sentences and fine that are prescribed under Section 396, IPC. He sought to submit various reasons why the Court should accept the plea on behalf of the appellants that the quantum of sentence awarded by the trial Court should be brought down. He pointed out to us that the appellants come from the poor section of society and that they were coolies, that they have no criminal antecedents and having regard to the fact that this was a solitary incident and other attendant circumstances that the Court should award a lesser punishment. This plea was vehemently opposed by the learned S.P.P. who contended that the offence under Section 396, IPC is the most serious of the graded types of dacoities. He submitted that this was a pre-meditated, cold blooded murder perpetrated for gain and that the accused are disqualified from putting forward any plea for sympathy or leniency. We have carefully considered the rival contentions and we have taken note of the age of the accused and their status in life as also their antecedents. On the special facts of this case, we are of the view that a sentence often years rigorous imprisonment would meet the ends of justice.\n<\/p>\n
22. The appeal succeeds to this limited extent. While we uphold the conviction awarded to the five accused by the trial Court for the offence punishable under Section 396, IPC, we set aside the sentence of life imprisonment awarded to them by the trial Court and in its place, we direct that each of the appellant accused shall undergo rigorous imprisonment for a period often years. They will be entitled to set off for the period undergone by them. We would like the Govt. to duly record its appreciation for the excellent investigation and detection in this case.\n<\/p>\n
23. The accused who is on bail is hereby directed to surrender to the trial Court and the trial Court is directed to take such action as it deems fit in the circumstances, as provided under law and he shall be remanded to custody.\n<\/p>\n
24. We direct-the office to pay a sum of Rs. 1000\/- to learned Advocate Mr. Jagadish Patil who has appeared as amicus curiae in Crl. A. 835\/96.<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court K.M. Ibrahim Alias Bava And Ors. … vs State Of Karnataka on 5 July, 1999 Equivalent citations: 1999 (2) ALD Cri 773, 2000 CriLJ 197 Author: M Saldanha Bench: M Saldanha, N Veerabhadraiah JUDGMENT M.F. Saldanha, J. 1. The first of these three appeals, has been preferred by the five accused persons […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-245931","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nK.M. 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