# VENKATESH @ CHANDRA & ANR. ETC v. STATE OF KARNATAKA

- **Citation:** [2022] 4 S.C.R. 556
- **Court:** Supreme Court of India
- **Decided:** 2022-04-19
- **Case number:** Criminal Appeal Nos. 1476-1477 of 2018
- **Bench:** Uday Umesh Lalit, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/venkatesh-chandra-anr-etc-v-state-of-karnataka-36060
- **Pages:** 33

## Headnote

Evidence Act, 1872: s.27 - Settled Legal Position - Going by
the parameters of s.27 of the Evidence Act, only so much of
information which relates distinctly to the facts thereby discovered
can be stated to have been proved - Only that part of the statement
which leads to the discovery of certain facts alone could be marked
in evidence and not the entire of the statement - All the earlier facts
narrated in the statement about past history which are in the nature
of self-implication, would be inadmissible as amounting to a
confession made to a police officer.
Practice and Procedure: The Prosecuting Agency should u/
s.27 of Evidence Act, 1872 record only that part of the statement
which leads to the discovery of fact - The practice of putting the
confession of the accused made to the police officer which is
otherwise hit by the principles of Evidence Act must immediately be
stopped as such kind of statements may have a direct tendency to
influence and prejudice the mind of the Court.
Evidence: Circumstantial Evidence - Legal Position - The
circumstances on the basis of which the conclusion of guilt is to be
drawn, must be fully established and the circumstances forming the
chain of evidence must be so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the
accused and should rule out every possible hypothesis except the
one to be proved by the prosecution.
Media Trial: Consequences and Limitations - All matters
relating to the crime and whether a particular thing happens to be
a conclusive piece of evidence must be dealt with by a Court of Law
and not through a TV channel - If at all there was a voluntary
statement, the matter would be dealt with by the Court of Law - The
public platform is not a place for such debate or proof of what
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otherwise is the exclusive domain and function of Courts of law -
Any such debate or discussion touching upon matters which are in
the domain of Courts would amount to direct interference in
administration of criminal justice.
Criminal law: Approach of Court in considering the
involvement of accused in other crime - Distinction, during bail
and trial proceedings - Approach at different stages including the
stage of considering the bail application are qualitatively different
- At the stage of consideration of bail, the primary concern is to
weigh in balance the liberty of an accused and the possible prejudice
that may get visited upon the societal interest in case he is released
and therefore it would be apt and proper to consider his involvement
in other crimes - But at the stage of final assessment whether
conviction be recorded or not, the matter must be considered purely
on its merits unless the very membership of a gang or a group or an
outfit itself can amount to an offence or as an aggravated form of
an offence - At the stage of sentencing, his involvement in other
crimes may be a relevant factor provided the concerned material in
the form of concluded judgments in the other matters are brought
on record in a manner known to law - The established involvement
in other matters would then certainly be relevant while dealing with
the question whether the concerned accused is required to be dealt
with sternly or leniently.
Allowing the appeals, the Court
HELD: 1. It was observed by the Privy Council in Pulukuri
Kotayya and Ors. v. King-Emperor the words - "with which I
stabbed A" were inadmissible since they did not relate to the
discovery of knife in the house of the informant. Applying this
logic, only that part of the statement which leads to the discovery
of certain facts alone could be marked in evidence and not the
entirely of the statement. Coming to the instant case and going
by the principle and the illustration highlighted by the Privy
Council the expression "where we committed murder" must not
come on record. Similarly, all the earlier facts narrated in the
statement about past history which are in the nature of selfim

## Text

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[2022] 4 S.C.R. 556
556
VENKATESH @ CHANDRA & ANR. ETC.
v.
STATE OF KARNATAKA
(Criminal Appeal Nos. 1476-1477 of 2018)
APRIL 19, 2022
[UDAY UMESH LALIT AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Evidence Act, 1872: s.27 - Settled Legal Position - Going by
the parameters of s.27 of the Evidence Act, only so much of
information which relates distinctly to the facts thereby discovered
can be stated to have been proved - Only that part of the statement
which leads to the discovery of certain facts alone could be marked
in evidence and not the entire of the statement - All the earlier facts
narrated in the statement about past history which are in the nature
of self-implication, would be inadmissible as amounting to a
confession made to a police officer.
Practice and Procedure: The Prosecuting Agency should u/
s.27 of Evidence Act, 1872 record only that part of the statement
which leads to the discovery of fact - The practice of putting the
confession of the accused made to the police officer which is
otherwise hit by the principles of Evidence Act must immediately be
stopped as such kind of statements may have a direct tendency to
influence and prejudice the mind of the Court.
Evidence: Circumstantial Evidence - Legal Position - The
circumstances on the basis of which the conclusion of guilt is to be
drawn, must be fully established and the circumstances forming the
chain of evidence must be so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the
accused and should rule out every possible hypothesis except the
one to be proved by the prosecution.
Media Trial: Consequences and Limitations - All matters
relating to the crime and whether a particular thing happens to be
a conclusive piece of evidence must be dealt with by a Court of Law
and not through a TV channel - If at all there was a voluntary
statement, the matter would be dealt with by the Court of Law - The
public platform is not a place for such debate or proof of what
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otherwise is the exclusive domain and function of Courts of law -
Any such debate or discussion touching upon matters which are in
the domain of Courts would amount to direct interference in
administration of criminal justice.
Criminal law: Approach of Court in considering the
involvement of accused in other crime - Distinction, during bail
and trial proceedings - Approach at different stages including the
stage of considering the bail application are qualitatively different
- At the stage of consideration of bail, the primary concern is to
weigh in balance the liberty of an accused and the possible prejudice
that may get visited upon the societal interest in case he is released
and therefore it would be apt and proper to consider his involvement
in other crimes - But at the stage of final assessment whether
conviction be recorded or not, the matter must be considered purely
on its merits unless the very membership of a gang or a group or an
outfit itself can amount to an offence or as an aggravated form of
an offence - At the stage of sentencing, his involvement in other
crimes may be a relevant factor provided the concerned material in
the form of concluded judgments in the other matters are brought
on record in a manner known to law - The established involvement
in other matters would then certainly be relevant while dealing with
the question whether the concerned accused is required to be dealt
with sternly or leniently.
Allowing the appeals, the Court
HELD: 1. It was observed by the Privy Council in Pulukuri
Kotayya and Ors. v. King-Emperor the words - "with which I
stabbed A" were inadmissible since they did not relate to the
discovery of knife in the house of the informant. Applying this
logic, only that part of the statement which leads to the discovery
of certain facts alone could be marked in evidence and not the
entirely of the statement. Coming to the instant case and going
by the principle and the illustration highlighted by the Privy
Council the expression "where we committed murder" must not
come on record. Similarly, all the earlier facts narrated in the
statement about past history which are in the nature of selfimplication, would be inadmissible as amounting to a confession
made to a Police Officer. All the statements must be read
accordingly. [Para 18][579-C-F]
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA
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2. It must be observed that there is a tendency on part of
the Prosecuting Agency in getting the entire statement recorded
rather than only that part of the statement which leads to the
discovery of facts. In the process, a confession of an accused
which is otherwise hit by the principles of Evidence Act finds its
place on record. Such kind of statements may have a direct
tendency to influence and prejudice the mind of the Court. This
practice must immediately be stopped. In the present case, the
Trial Court not only extracted the entire statements but also relied
upon them. The other disturbing feature that may be noticed is
that voluntary statements of the appellants were recorded on a
DVD which was played in Court and formed the basis of the
judgment of the Trial Court. Such a statement is again in the
nature of a confession to a Police Officer and is completely hit by
the principles of Evidence Act. If at all the accused were desirous
of making confessions, the Investigating Machinery could have
facilitated recording of confession by producing them before a
Magistrate for appropriate action in terms of Section 164 of the
Code. Any departure from that course is not acceptable and cannot
be recognized and taken on record as evidence. The Trial Court
erred in exhibiting those DVD statement. As a matter of fact, it
went further in relying upon them while concluding the matter on
the issue of conviction. [Paras 19 and 20][579-F-H; 580-A-C]
3. What has further aggravated the situation is the fact that
said statements on DVD recorded by the Investigating Agency
were played and published in a program named "Putta Mutta" by
Udaya TV. Allowing said DVD to go into the hands of a private
TV channel so that it could be played and published in a program
is nothing but dereliction of duty and direct interference in the
administration of Justice. All matters relating to the crime and
whether a particular thing happens to be a conclusive piece of
evidence must be dealt with by a Court of Law and not through a
TV channel. If at all there was a voluntary statement, the matter
would be dealt with by the Court of Law. The public platform is
not a place for such debate or proof of what otherwise is the
exclusive domain and function of Courts of law. Any such debate
or discussion touching upon matters which are in the domain of
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Courts would amount to direct interference in administration of
Criminal Justice. [Para 21][580-D-F]
4. The approach at certain stages including the stage of
considering the bail application may be qualitatively different. At
the stage of consideration of bail, the primary concern is to weigh
in balance the liberty of an accused and the possible prejudice
that may get visited upon the societal interest in case he is
released. It would therefore be apt and proper to consider his
involvement in other crimes. But at the stage of final assessment
whether conviction be recorded or not, the matter must be
considered purely on its merits unless the very membership of a
gang or a group or an outfit itself can amount to an offence or as
an aggravated form of an offence. Again, at the stage of sentencing,
his involvement in other crimes may be a relevant factor provided
the concerned material in the form of concluded judgments in
the other matters are brought on record in a manner known to
law. The established involvement in other matters would then
certainly be relevant while dealing with the question whether the
concerned accused is required to be dealt with sternly or leniently.
[Para 23][581-B-E]
Sharad Birdhichand Sarda v. State of Maharashtra AIR
1984 SC 1622 : [1985] 1 SCR 88; Musheer Khan @
Badshah Khan & Anr. State of Madhya Pradesh (2010)
2 SCC 748 : [2010] 2 SCR 119 - relied on.
Pulukuri Kotayya and Ors. v. King-Emperor AIR (34)
1947 PC 67 - reffered to.
Case Law Reference
[1985] 1 SCR 88
relied on
Para 25
[2010] 2 SCR 119
relied on
Para 31
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1476-1477 of 2018.
From the Judgment and Order dated 04.09.2017 of the High Court
of Karnataka at Bangalore in Criminal Appeal No. 799 of 2011 and
Criminal Appeal No. 637 of 2012.
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA
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Lakshmeesh S. Kamath, Kaustubh Shukla, Ms. Smriti Ahuja, Ms.
Nancy Shamim, Advs. for the appellants.
Nikhil Goel, AAG, V. N. Raghupathy, Adv. for the respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. These appeals by special leave filed by original accused Nos.1
to 4 are directed against the common judgment and order dated 04th
September 2017 passed by the High Court1 in Criminal Reference Case
No.14 of 2010; and in Criminal Appeal No.799 of 2011 and Criminal
Appeal No.637 of 2012.
2. The appellants along with original accused Nos.5 to 9 were
tried by the Trial Court2 in Sessions Case No.443 of 2001 and Sessions
Case No.55 of 2004 for having committed offence punishable under
Section 396 of the IPC3. Accused No.9 died during the pendency of the
trial and the proceedings against her stood abated. The Trial Court2
acquitted original accused Nos.5 to 8 by its judgment dated 17.09.2010
but convicted the appellants for having committed offences punishable
under Section 396 read with Section 34 of the IPC3. By a subsequent
order of punishment dated 30.09.2010, the Trial Court imposed death
sentence upon all the appellants for the offence committed by them.
3. This resulted in Criminal Reference Case No.14 of 2010 for
confirmation of death sentence before the High Court. The convicted
accused, namely, the appellants herein also preferred Criminal Appeal
Nos.799 of 2011 and 637 of 2012 in the High Court. By its judgment and
order presently under challenge, the High Court did not find sufficient
reasons to affirm the death sentence. It found that the appellants were
guilty of having committed the offence under Section 394 of the IPC3
and sentenced them to suffer life imprisonment.
4. The instant proceedings arise out of Crime No.874 of 1999
registered pursuant to FIR dated 28.10.1999 lodged with Vijayanagar
Police Station, Bengaluru. The reporting made by one Dr. Prakash Vishnu
was:-
1 The High Court of Karnataka at Bengaluru
2 XXXIV Additional City Civil and Sessions Judge (Special Court), Central Prison
Premises, Bengaluru
3 The Indian Penal Code, 1860
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"I, Dr. Prakash Vishnu, hereby inform that today at about 9.15
AM, I left home as usual to attend my work in Bowring Hospital.
At that time, my father and mother both were alright. In our house
only myself, my father and mother are staying. Each one of us
are keeping separate key with us. My father is working as an
Imposer in Indian Express. My mother runs a Novelty Store near
our house.
Today afternoon when I returned home after work, some burnt
smell was coming from kitchen. I called my mother 2-3 times.
There was no reply. I myself went and opened the door, in kitchen,
stove was on. I left it as it is and open the room door, when I
opened room door, I saw my mother lying in blood pool. Pan was
also lying there, hoping that she is alive, I tried Resuscitation. But
her heart beat was stopped (I did not get pulse). Entire body was
turned bluish. Tongue was stretched out. I was very much shocked
and screamed very loudly. Then neighboring people came and
gathered there. I humbly request you to kindly trace out the culprits
who have murdered my mother and take suitable action against
them. Yesterday, my father had night duty and he was back at
6.00AM."
Accordingly, crime under Section 302 of the IPC was registered
against unknown persons.
5. During investigation, statements of the mother, sister and
husband of the deceased were recorded, who stated that the deceased
normally used to wear certain gold ornaments which were stolen as part
of the transaction. The Inquest Report, later marked as Exh.P-2
conducted on the body of the deceased also showed injuries on the ear,
presumably caused while taking away the earrings.
6. The post-mortem on the body was conducted by Dr. S.B. Patil
and the Post-Mortem Report, later marked as Exh. P-14 indicated that
the deceased had suffered 13 injuries. According to the medical opinion,
injuries 1 to 10 were possible by an iron road while injuries 11-13 were
inflicted by a knife. The external injuries noted in Post-Mortem Report
were as under: -
"1. Lacerated wound over right parietal region 7 cm above
right ear measuring 3cm x 1cm bone deep;
2. Lacerated wound over right parietal 2.5 cm above injury
No. (1) measuring 5 cm x 2 cm bone deep.
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA
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3. Lacerated wound over inter parietal region 2 cm to left of
injury (2) measuring 2 cm x 0.5 cm.
4. Lacerated wound over left parietal region measuring 5cm x
3 cm x skull cavity deep through which brain matter is draining
out. It is situated 10 cm above left ear.
5. Lacerated wound 4 cm above left ear measuring 10cm x
3cm x skull cavity deep situated in the fronto parietal temporal
region.
6. Lacerated wound 1cm above left ear in the temporal region
measuring 4cm x 1cm x skull cavity deep.
7. Lacerated wound 4cm behind injury No.5 in left side of
occipital region measuring 4cm x 1.5.cm x bone deep.
8. Lacerated wound in the mid occipital region measuring 3
cm x 1cm x bone deep.
9. Lacerated wound over right parietal-occipital region situated
7cm behind and above right ear.
10. Lacerated wound over left occipital region measuring 1.5
cm x 1cm x bone deep.
11. Incised wound over right ear lobule measuring 1cm x 0.5
cm x 0.5 cm.
12. Incised wound over left ear lobule measuring 1cm x 0.5
cm x 0.5 cm.
13. Incised wound over palmar aspect of left thumb distal
phalanyx measuring 3 cm x 2cm x muscle deep."
The Post-Mortem Report further stated:
"3. On reflection of scalp blood extraverted all over-scalp skullleft frontal bone, left partial bone, left temporal bone, and
occipital bone fractured into multiple pieces and blood
extraverted at fracture site. Bones of middle cranial and
posterior cranial fosse fractured into multiple pieces and blood
extraverted at fracture site.
4. Membrane-lacerated at fracture sites.
5. Brain covered by subdural and subarachnoid hemorrhage
all over base and surface and is partially drained out on left
side."
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7. More than 15 months after the incident, the appellants were
arrested on 01.02.2001 by the police in connection with said
crime. Soon after their arrest, voluntary statements of the
appellants were recorded by the Investigating Officer. These
four statements marked as Exh. P-21, P-22, P-23 and P-24 in
the trial, as extracted in the judgment of the Trial Court were:
"27.
The lst Accused has given his voluntary statement as
hereunder:
"Krishnadu and the ladies Lakshmi, Venkata Lakshmi,
Padma in the guise of begging food and water to the children
got open the door of a house at Moodalapalya and went
away. Immediately all of us rushed inside the house. My
brother-in-law Venkatesh alias Ramesh was waiting at the
door of the house. We dragged and took the woman who
was present in the said house and took her inside the house.
I caught hold of her closing her mouth, Munikrishna assaulted
to the back of her head with the rod he had, Chikkahanuma
pierced with the knife he had to the ear of said woman, I
snatched one pair of ear rings (vole), gold bangles which
wore on the body of said lady. Munikrishna snatched two
chains from her neck, Nallathimma took one ring and one
pair of silver leg chain and he handed over the leg chain to
Lakshmi, who is the wife of Doddahanuma. We have thrown
the iron rod and knife to the fence erected by the side of
drainage therein. I have sold the ornaments stolen by me to
a shop at Raja market. If I am taken there, I will show the
spot where we committed murder, and we will show the
place where we have thrown the knife and the rod. And
we will show the shop in which we sold the jewelleries and
get the said articles", and accordingly he got the said articles
through the Mahazar at Ex.P-21.
28.
The. 2nd accused has given his voluntary statement as
hereunder:
"Krishnadu and the ladies Lakshmi, Venkata Lakshmi,
Padma in the guise of begging food and water to the children
got open the door of a house at Moodalapalya and went
away. Immediately all of us rushed inside the house. My
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA
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brother-in-law Venkatesh alias Ramesh was waiting at the
door of the house. We dragged and took the woman who
was present in the said house and took her inside the house.
My elder brother caught hold of her closing her mouth, and
I assaulted to the back of her head with the rod I had,
Chikkahanuma pierced with the knife he had to the ear of
said woman, my elder brother snatched one-pair of ear rings
(vole), gold bangles which wore on the body of said lady,
'and I snatched two chains from her neck, Nallathimma
took one ring and one pair of silver leg chain and he handed
over the leg chain to Lakshmi, who is the wife of
Doddahanuma. We have thrown the iron rod and knife to
the fence erected by the side of drainage therein. I have
sold the ornaments stolen by me to a shop at Raja market.
If I am taken there, I will show the spot where we
committed murder, and we will show the place where we
have thrown the knife and the rod. And we will show the
shop in which we sold the jewelleries and get the said
articles", and accordingly he got the said articles through
the Mahazar at Ex.P-22."
29.
The 3rd accused has given his voluntary statement as
hereunder:
"Krishnadu and the ladies Lakshmi, Venkata Lakshmi,
Padma in the guise of begging food and water to the children
got open the door of a house at Moodalapalya and went
away. Immediately all of us rushed inside the house.
Venkatesh alias Ramesh was waiting near the door of the
house. We dragged and took the woman who was present
in the said house and took her inside the house. I caught
hold of her closing her mouth, Munikrishna assaulted to the
back of her head with the rod he had, Chikkahanuma
pierced with the knife he had to the ear of said woman,
Venkatesh alias Chandra snatched one pair of ear rings
(vole), gold bangles which wore on the body of said lady.
Munikrishna snatched two chains from her neck, and I took
one ring and one pair of silver leg chain and handed over
the leg chain to Lakshmi, who is the wife of Doddahanuma.
We have thrown the iron rod and knife to the fence erected
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by the side of drainage therein. I have sold the ornaments
stolen by me to a shop. at Raja market. If I am taken there,
I will show the spot where we committed murder, and we
will show the place where we have thrown the knife and
the rod. And we will show the shop in which we sold the
jewelleries and get the said articles", and accordingly he
got the said articles through the Mahazar at Ex.P-23.
30.
The 4th accused has given her voluntary statement as
hereunder:
"Myself, Padma, Venkatalakshmi and Krishnadu came
identifying a house. One day in the guise of requesting for
water got open the door, immediately the male persons
Venkatesh, Munikrishna, Nallathimma, Venkatesh alias
Ramesh, Krishnadu rushed inside the house, we left said
place. Thereafter the male persons returned and informed
us that we assaulted and murdered a lady in the said house
and snatched away the jewelleries wore by the said lady
on her body, and Nallathimma gave one pair of silver leg
chain which was brought from the said house. Further, he
also paid the amount for my expenditure. I wear the leg
chain given to me, she stated that if she is taken there she
will show the house which identified by her and shown to
the male persons. I have produced before you the silver leg
chain given to me by Nallathimma" and she handed over
the same through Mahazar at Ex.P.24""
8. On 6.2.2001, Voluntary Statements of the appellants were
recorded by the Investigating Officer on a DVD, later marked as Exh.
P-25 to P-28 in the trial. The discussion with regard to said DVD by the
Trial Court is in paragraph 35 of its judgment. It appears that what was
recorded on said DVD was played and published in a program named
"Sutta Mutta" by Udaya TV.
9. It must be stated that according to the prosecution, a gold ring
and a pair of silver anklets were recovered from the person of accused
No.4- Lakshmamma alias Lakshmi at the time of her arrest. More than
seven days after the recording of their voluntary statements, i.e. on
07.02.2001 and 08.02.2001, three of the appellants allegedly led the
Investigating team to a jewellery shop named Sathyanarayana Jewellery
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA
[UDAY UMESH LALIT, J.]
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Mart owned by one D.Janardhana Shetty, as a result of which, following
jewellery items were recovered:-
On 07.02.2001
On 08.02.2001
10. On 09.02.2001, accused No.2 Munikrishna allegedly led the
Investigating Team to an open space near a drainage which resulted in
recovery of an iron rod and a knife (which were marked as MO-16 and
MO-17 in the trial) in the presence of a panch witness, named Manjunatha
examined as PW-12 in the trial. The relevant portion with regard to such
recovery dealt with by the Trial Court was as under:-
"36. In order to prove regarding seizure of articles utilized for
commission of offence, the prosecution has examined one
Manjunatha as PW-12 in the above case as the witness who was
present at the time of seizure of the iron rod and knife said to
have been utilized by the accused for committing offence and as
the person who has signed the Mahazar at the time of seizure. On
observing the said evidence the 2nd accused has taken out the
M.O.16 and 17 the iron rod and knife from the ditch situated by
the side of an open space near the drainage in the 5th Cross
Shanthaveri Gopala Gowda Nagar, Moodalapalya and the same
was seized by the police, and at that time have also conducted
Mahazar as per Ex.P-11. He identified the Ex.P-11 (A) as his
signature, and stated that M.O.16 and 17 are the weapons taken
out by the Accused Munikrishna.
11. MO-16 and MO-17 were sent for chemical examination and
both the articles were found to be stained with human blood. However,
in terms of the FSL Report, later marked as Exh. P-10, blood group
1.
accused
No.1-
Venkatesh alias
Chandra
Recovery of three gold bangles
and a pair of gold ear studs.
2.
accused
No.2-
Munikrishna
alias Krishna
Recovery of one gold chain with
two lines mangalya and gold
necklace.
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could not be determined and the tests were inconclusive. The recovered
gold ornaments were not subjected to any Test Identification Parade but
were stated to have been identified by the relations of the deceased in
police station.
12. After completion of investigation, the accused were sent up
for trial and tried by the Trial Court in Sessions Case No.443 of 2001
and 55 of 2004. In support of its case, the prosecution relied upon testimony
of 24 witnesses and it marked 29 documents, namely, Exh. P-1 to P-39
and produced material objects MO-1 to MO-17. The gist of the testimony
of the witnesses was: -
A.
PW-1, Shri Vishnu, husband of the deceased deposed that
after he had returned home, he found the deceased lying in
a pool of blood and in the same night he came to know that
gold mangalya chain, gold necklace, three gold bangles, a
ring, pair of silver anklets etc. which the deceased used to
wear were missing.
B.
PW-2, Sharadamani, sister of the deceased did not support
the case of the prosecution that she had gone to the police
station and identified the gold ornaments. She was declared
hostile.
C.
PW-3, PW-7 and PW-22 were panch witnesses to Inquest
Report Exh.P-2 while PW-4, R. Mohan Kumar was panch
witness to Spot Mahzar Exh. P-3. PW-5, Babu was panch
witness to the search and seizure of the gold ring and the
pair of silver anklets recovered from the person of accused
No.4 at the time of her arrest. PW-6, Rudra Prasad was
the panch witness to Mazhar Exh.P-6 in terms of which
accused nos.1 to 4 had led the investigating team to the
house of the deceased where the murder was allegedly
committed.
D.
PW-10, Suresh Gaonkar, Director, Forensic Laboratory,
Kalaburagi deposed that he had examined MO-16 iron rod
and MO-17 knife and had found the same to be stained
with human blood and that he had given opinion as per Exh.
P-10.
E.
PW-11 and PW-13 were panch witness to the seizure of
ornaments at the instance of accused nos.1, 2 and 3, while
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PW-12 Manjunath was the panch witness to the recovery
of MO-16 iron rod and MO-17 knife.
F.
PW-14, K.H. Manjunath, Professor, Forensic Medicine,
Victoria Hospital, Bengaluru was examined to prove the
signature of the author of Exh. P-14 Post-Mortem Report
as Dr. S. D. Patil who conducted the post-mortem
examination was no more.
G.
PW-18, Smt. Jayamma, mother of the deceased also failed
to identify the ornaments stated to be belonging to the
deceased and produced by the prosecution.
H.
PW-23, D. Janardhan Shetty, receiver of gold ornaments
from accused no.1 to 4 deposed about the recoveries
effected on 7th and 8th of February 2001, as tabulated in
paragraph 9 above.
I.
PW-24, N. Chalapathi, Deputy Superintendent of Police,
the Investigating Officer deposed about the steps taken
during investigation including the recording of voluntary
statements of the appellants Exh. P-21 to P-24. He further
stated that on the evening of 06.02.2001, he had got the
statements of the appellants recorded through videorecording on DVDs, marked as Exh. P-25 to P-28. He also
produced a chart Exh.P-29 giving details about the cases
pending against the gang of which the appellants were
alleged to be members. However, no documents either in
the form of chargesheets, depositions or orders were
produced. Even no question regarding Chart Exh.P-29 was
put to the appellants in their examination under Section 313
of the Code.
13. The Trial Court accepted the case of the prosecution against
the appellants i.e. accused Nos.1 to 4 relying inter alia on the voluntary
statements Exh. P-21, P-22, P-23 and P-24 and the DVD Exh. P-25 to
P-28. The relevant discussion on the point was:-
"31. On noticing all these factors, it is pertinent to note that if at all
the accused No.1, 2 and 3 had not sold either M.O.-6 To 10 or
other articles to PW-23, why the PW-23 was giving statement
before the Court that the accused had sold the said articles to the
him. If at all he wanted to give false evidence or he wanted to
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give evidence with an intention to harass the accused, then there
should be hatredness, jealousy and ill-will against them. However,
the defense Advocate has not made any such suggestion of hatred,
jealousy or ill-will against the accused or any proof in that regard.
Further, on observing the statement made by him that the PW-1
has identified that the said article belonged to his wife, and that
the PW-23 has stated that the accused No.1, 2 and 3 have sold
the said article to him, and then on their request he has returned
the same, and that the PW-11 was present at that time, and that
the PW-12 Rangaswamy was present while he got seized the
said article, and similarly, according to the voluntary statement of
Ex.P-24 the 4th accused Lakshmamma out of the jewellers
smuggled having wore one pair of a ring (vole) and one pair of leg
chain and a saree, she has handed over the said articles to the
police. She admitted these factors in her voluntary statement.
Further, the said articles are got seized before the witness PW-5
Babu through Mahazar at Ex.P-5 conducted in that regard. The
said Babu also clarified this fact in his evidence stating that the
police through a Woman Constable in their station made
arrangement for her to wear another saree, and out of the articles
stolen by her got seized the saree, ear ring (vole) and leg chain,
and M.O.5 is the leg chain pertaining to this case. The accused
Lakshmi has stated that her Associate Nallathimma stolen and
handed over the said articles to her, and she identified the Ex.P-5
(a) as her signature. During her cross-examination she has stated
that on that day the Inspector Chalapathi had called her to the
Station, showing the accused in the station stated that she has
committed robbery, some articles were kept on the table and on
seeing them she stated that he has conducted Mahazar and further
stated that during her re-examination the M.O.5 and other articles
were seized from the accused Lakhsmi only.
32. The accused have not clarified in any manner before the Court
as to how the said articles came to their possession and they have
not proved that the said articles belong to them, and the statement
and voluntary statement made regarding the articles kept and
handed over is just and proper according to Section 27 of Evidence
Act and the Court has to perform the same.
33. Furthermore, Lakshmamma Venkatesh alias Chandra,
Munikrishna, Doddahanuma (Chinnappa and Doddahanuma who
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said to be not the accused in this case) having given their voluntary
statement in the D.V.D. at Ex.P-25, wherein they have narrated
about this offence.
34. In 313 Statement to the accused Doddahanuma, Munikrishna,
Venkatesh alias Chandra, Deceased Chinnappa and Lakshmanna
having given their voluntary statement to Question No.26 and the
same has been recorded in the C.D. and D.V.D. When it is stated
that it will be shown and it should be seen, Munikrishna, Venkatesh
alias Chandra, Lakshmamma have replied that they will not see
it, and they will not tell anything in that regard, and the said reply
has been recorded.
35. On noticing the said D.V.D. (Ex.P-25), the accused Nos.l, 2
and 4 had given voluntary statements, and the persons found therein
are the accused No.1, 2 and 4 before this Hon'ble Court, and on
observing the statement given by them, they are the persons who
have given their statement naturally without subjecting any pressure
or threat in the natural manner. On observing their appearance
while recording the same, they did not have the situation of any
tension or shock, It will make the statement which is given naturally.
If at all they had not given any statement or if the said statement
was obtained and recorded by the police forcibly by duress, they
could have stated the same in their Section 313 Statement. But,
without giving any such reply, they even do not like to watch the
D.V.D. and the C.D. containing of the photographs of the persons
subjected to incident and also the D.V.D. of Sutta Mutta Program
participated by the accused. On noticing the statement given by
them that they do not like to say anything in that regard, it reveals
that if at all if they had seen it they ought have identified themselves
and they should have given some reply regarding the facts of the
statement given by them. But, they have stated that they will not
see the C.D. and also the D.V.D. and that they will not give any
reply, the intention behind it will be non-admitting the true facts."
14. The Trial Court finally concluded:
"52. On the basis of voluntary statements given by the accused
No.1 to 3, the 4th accused Lakshmamma has stated that she along
with others in the guise of requesting of water went to the
residential house of the deceased and got open the door of the
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house, and then the accused rushed inside the house and committed
her murder, and though she has not directly participated to the
commission of murder, according to her, she and her group.......
Therefore, I answer the issues No.1 to 4 in the affirmative and
came to the conclusion that through circumstantial evidence the
prosecution has proved that the accused No.1, 2 and 3 made attack
against her and murdered her, and also stolen the gold and silver
ornaments which she had wore on her body. This Court having
been constituted for conducting trial and deciding the heinous
offence committed by Dhadupalya gang, and the Inspector called
Chalapati got arrest of the accused in all the cases which are
registered for trial and having recovered from them the stolen
articles, and also even the place of occurrence shown by the
accused conducted mahazar, and thus played a main role in the
investigation. Subsequently, he transferred the cases to the
concerned jurisdictional police stations. Though there may be some
defects in all these cases, several Investigating Officers having
taken up investigation for the reason of their transfer or for any
other reason, and though might have caused some defects in the
said circumstances, the Police Inspector Sri. Chalapathi and his
team by arresting the accused and their gang and subjected to the
actions of the Court, and this Court will appreciate the actions
taken by him."
15. While considering the matter at the stage of sentencing, the
Trial Court in its order dated 30.09.2010 observed: -
"15. The prosecution through the Investigating Officer Chalapathi
who traced the accused for the first time submitted a detailed
statistical report that what kind of offence committed by the persons
of Dandupalya Group. Further, the statistical report reveals that
Munikrishna alias Venkataswamy the accused in this case has
totally participated in 54 different cases within the limits of various
police stations of Karnataka State and out of them he participated
in 28 dacoit and murder cases, and out of them he committed 50
murder offence, and that the accused Venkatesh alias Chandra
has participated in 45 different cases, and out of them he
participated in 28 dacoit and murder cases, and that the accused
Nallathimma participated in 28 dacoit and murder cases and that
the accused Lakshmamma participated in 18 murder cases.
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16. In view of the above facts the prosecution has argued to impose
the punishment of death imprisonment to the accused, and the
offence committed by the accused being extremely heinous
offence, it is also prayed impose death imprisonment considering
the offence as most rarest of rare cases.
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18. According to the statistical report furnished before the Court
totally 111 cases are registered. The accused are released in most
of the cases among them. In some of the cases as stated
commencing from life imprisonment other punishments also
imposed against them which they are suffering. Further, on
observing all these cases, the modus operandi of the accused is
that the accused are doing the profession of taking assistance of
women in their group, through them got marked the houses (the
houses in which weak persons, aged persons and woman are
staying) and got themselves introduced in the guise of requesting
for water and food, and in the same guise they will got open the
door of the house, the male persons of the gang will trespass into
the house and assault the ladies, aged persons and weak persons
with the iron rod, cut the neck from the knife, tying the neck
tightly from the thread kill them holding their breath, take away
the gold ornaments and other ornaments from their body and from
their house, sell them and lead their life from doing so. Since the
year 1991 to 2000 the same gang have committed the said act in
all the parts of Karnataka and also in Kerala State, and according
to the statistical report furnished they have totally committed 74
murders, out of them being 34 men and 40 women and they are
murdered in different ways. That too, it states that 23 men and 21
women are murdered in Bangalore City only. The defense counsel
have not questioned the same."
16. Criminal Reference Case No.14 of 2010 and Criminal Appeal
Nos.799 of 2011 and 637 of 2012 arising from the decision of the Trial
Court were dealt with by the judgment and order presently under
challenge, as stated above. Some of the relevant paragraphs of the
decision were: -
"12. Further, the Trial Court having noted the offence proved
against accused Nos.1 to 4 was not only heinous, but accused
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Nos.1 to 4 committed the said offence with utter brutality and
that they were facing trial before various courts in as many as 111
cases involving similar charges and the appellants/ accused having
been convicted in some of the cases, the Trial Court found it proper
to award death sentence on all the four accused persons.
31. From the material on record, it is evident that there are no
eyewitnesses to the incident. The case of the prosecution is rested
entirely on circumstantial evidence. These circumstances relied
on by the prosecution are:-
The factum of the murder and the simultaneous missing of
gold and silver ornaments from the person of the deceased.
Recovery of the missing ornaments belonging to the deceased
at the instance of the appellants/ accused Nos.1 to 4.
Recovery of weapons viz. iron rod - M.O.16 and knife M.O.
17 near the spot of occurrence at the instance of the appellants/
accused Nos.1 to 4.
The conduct of the appellants/ accused Nos.1 to 4 in pointing
out the place of occurrence.
54. Apropos the contention of the learned counsel that the contents
of Ex.P6 and the evidence of PW-6 do not have the effect of
incriminating the accused, as the spot of occurrence was known
to the Investigating officer much prior to the arrest of accused
No.1 is concerned, suffice it to note that there is nothing in the
entire evidence to suggest that accused Nos.1 to 4 derived
knowledge of the spot of occurrence through the Investigating
officer or through any other mode. There is no explanation by the
accused that they came to know of the spot of occurrence through
the Investigating Officer or through any other witnesses. On the
other hand, the evidence of PW.6 coupled with the contents of
Ex.P6 clearly establish that accused Nos.1 to 4 by themselves
showed the place of occurrence to the police and the panch
witnesses, as a result, this evidence is rendered relevant under
section 8 of the Evidence Act thereby establishing yet another
circumstance in proof of the complicity of accused Nos.1 to 4 in
the offence charged against them.
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66. Thus, it is clear that simultaneous or identical disclosures are
not an anathema to Section 27 of the Evidence Act. In the instant
case, the evidence produced by the prosecution clearly goes to
show that all the four accused persons made similar disclosures
relating to the hiding of the weapons, knowledge of the spot of the
offence and the sale or ornaments belonging to the deceased. It is
proved that the information given by the accused has led to the
discovery of facts which clearly establish the nexus between
accused Nos.1 to 4 and the crime in question.
70.