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Judgment
Being aggrieved by the judgment of conviction and order of sentence dated 27.07.2012 in S.C. No.1072/2009 passed by the Addl. Sessions
Judge, Fast Track Court-XIV, CCC, Bangalore City (hence forth for brevity referred to as the Sessions Court'') wherein the accused No.1 and 2
were convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and accused No.2 alone was
convicted for the offence punishable under Section 307 of the Indian Penal Code, those two accused No.1 and 2 have preferred this appeal.
In their memorandum of appeal the appellants have stated that the Court below has grossly erred in appreciating the evidence which has
wrongly come to the conclusion that PWs.1 and 2 were the eye witnesses to the alleged incident. It ignored the omissions and contradictions
elicited in the evidence of PWs.1 and 2. It also ignored the fact that PW.21 the Investigating Officer had wrongly attributed a strong motive as
against the present appellants who were already in the custody prior to the occurrence and the said Investigating Officer was instrumental in fixing
the appellants as accused. The said Investigating Officer had no powers to investigate the case under Section 156 of the Criminal Procedure Code.
The voluntary statements of accused Nos.1 and 3 also does not have legal sanctity. With this they have prayed for allowing the appeal by setting
aside the judgment of conviction and order on sentence under appeal and to acquit them of the alleged offences.
The respondent is being represented by the Additional State Public Prosecutor.
Lower court records were called for and the same are placed before this Court.
Heard arguments from both side and perused the materials placed before this Court.
The summary of the case of the prosecution is that about three years prior to the date 15.05.2009 the deceased Mahesha was arrested by K G
Nagar Police and was sent to jail along with accused No.4 Lokesh @ Kadhar Loki and his associates. Said Mahesha was enlarged on bail and at
that time accused No.4 Lokesh demanded deceased Mahesha to pay him a sum of Rs.2,00,000/- so as to secure bail for himself also. Mahesha
informed the same to his parents i.e., PWs.1 and 2 after his enlargement on bail who expressed their financial difficulty in that regard. As such, he
could not financially assist accused No.4 Lokesh. It is further alleged that accused Nos.1 to 3 and juvenile accused by name Yashwanth were
frequently contacting the deceased Mahesha and were reminding him the request made by the Lokesh for financially supporting him for his
enlargement on bail. In the mean time deceased Mahesha got married about 23 days prior to the incident. Even after his marriage also the present
appellants/accused and accused No.3 Annappa and juvenile accused Yashwanth approached the deceased frequently and kept reminding him of
the request of accused No.4 to financially support him. Since deceased Mahesha did not comply with the demand made by accused No.4 Lokesh,
the said Lokesh abetted accused No.1 Girish, accused No.2 Vinod, accused No.3 Annappa and juvenile accused Yashwanth and in furtherance
of the criminal conspiracy among four accused they decided to kill Mahesha.
It is the further case of the prosecution that on 15.05.2009 at about 10.00 p.m. PW.1 Sarojamma, the mother of the deceased who was
working in a garment factory, called from her husband''s (PW.2 Shankare Gowda''s) cell phone to the cell phone of deceased Mahesha enquiring
him about he coming for dinner to home. Said Mahesha replied her stating that he was having dinner at his friends'' house PW.6 Siddu @
Siddalinga and that he would come home a bit later. However, after some time at about 10.15 to 10.30 p.m. on the same night PWs.1 and 2
heard hue and cry of their son from a close proximate and they came out of the house and went towards the junction of the first main, third cross
road of Dattatreya Nagara from where the sound was coming, only to see that their son Mahesha was being assaulted by three to four persons.
That seeing them two of them ran away and PW.2 Shankare Gowda rushed to the rescue of his son and held accused No.1 Girish who was
armed with a weapon called long in his hand. That PW.1 requested said accused not to assault his son, but in the meanwhile accused No.2 Vinod
stabbed PW.2 Shankare Gowda on his abdomen causing him bleeding injuries. PW.2 also sustained injuries on his hand when he tried to snatch
the weapon (long) from accused No.1 Girish. Thereafter since the accused flew from the scene, both the injured Mahesha and PW.2 Shankare
Gowda were taken to K R Hospital on ring road in an autorickshaw. PW.2 was advised to be taken to a higher hospital for treatment and another
injured Mahesha was declared ''dead''. Injured PW.2 Shankare Gowda was then shifted to St. Johns Hospital and was admitted as an inpatient for
treatment. Thereafter his wife PW.1 Sarojamma went to Girinagar police station and narrated the incident which was reduced into writing by
PW.21 D C Nanda Kumar as Station House Officer and the said complaint at EX.P1 was registered in their station Crime No.163/2009 and FIR
as per EX.P.29 was submitted to the Court.
According to prosecution the police conducted investigation in the matter, but during the investigation they came to know that the place of
incident fall within the jurisdiction of Chennammanakere Achchukattu police station. As such, it is the said Chennammanakere Achchukattu police
received case papers and filed FIR in Crime No.279/2009 of their police station and submitted to the court and ultimately the said police filed
charge sheet against accused No.1 to 4. After committal of the case to it the Session Court framed charges against all the four accused for the
offence punishable under Sections 109, 302, 307, 120 (B) read with Section 34 of the Indian Penal Code. Since the accused pleaded not guilty in
the trial the prosecution examined 21 witnesses from PWs.1 to 21 and got marked documents from EXs.P1 to P37 and material objects from
MO.1 to MO.12. The accused entered defence and examined two witnesses as DW.1 and DW.2 and got marked documents from EX.D1 to D3.
After hearing both side and considering the material placed before it the Sessions Court by its impugned judgment of conviction dated
27.07.2012 convicted accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and
convicted accused No.2 for the offence punishable under Section 307 of the Indian Penal Code and acquitted the accused No.1 and 2 for the
offence punishable under Section 120(B) of the Indian Penal Code, acquitted accused No.1 for the offence punishable under Section 307 of the
Indian Penal Code and accused No.3 and 4 were acquitted of the offences punishable under Sections 120(B), 109, 302, 307 read with Section
34 of the Indian Penal Code. Accused Nos.1 and 2 were sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- each, in
default to undergo simple imprisonment for a period of six months for the offences punishable under Section 302 of the Indian Penal Code. The
accused No.2 was sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.1,000/- in default, to undergo
simple imprisonment for three months for the offence punishable under Section 307 of the Indian Penal Code. It is against the said judgment of
conviction and order of sentence the accused Nos.1 and 2 have preferred this appeal as appellants No.1 and 2 respectively.
PW.1 Smt. Sarojamma w/o Shankare Gowda is the complainant in the case. In her examination in chief she has stated that all the accused are
known to them and deceased Mahesha was her son and CW.2 Shankare Gowda is her husband. She has stated that while his son was enlarged
on bail in a previous motor vehicle accident case his co-inmate in jail cum his friend Loki and Murthy had asked him to help them with the finance
of Rs.2,00,000/- to enable them also to come out of the jail on bail. Because of the financial difficulty in his family the deceased Mahesha could not
able to arrange it. Regarding the incident she said that on the date 15.05.2009 at her phone call her son stated that he would be coming home after
having dinner in the house of Siddu. At 10.15 p.m. after hearing some yelling noise from outside she joined by her husband went outside the home.
Near the flagpole on third cross where they saw the accused Giri, accused Vinay and two more persons and Yashwanth were quarrelling with their
son Mahesha. By the time these people approached them all the four of them were assaulting her son, among whom Giri was assaulting their son
with the weapon called Long, Annappa and Vinay were assaulting him with knife and Yashwanth was assaulting with a club. They also caused stab
injury on their son. When her husband rushed to the rescue of his son, accused Vinay stabbed him (PW.2) with a knife on his abdomen. He also
caused hurt on the right hand of her husband. At the crying of these people for help when the neighbors and people rushed to the place, all the four
accused ran away from the place. Thereafter the injured were shifted to the hospital, by which time the injured Mahesha was succumbed to the
injuries. Her husband was admitted in the hospital. After midnight at 12.45 hours she went to Girinagar police station and lodged a complaint as
per EX.P1. The witness has further stated that on the next day morning the police came to their house to whom she has shown the place of incident
where they drew a scene of offence panchanama as per EX.P2 and seized sample soil, blood stained soil from the place. Thereafter once again
she went to police station and lodged a complaint even as against Yashwanth and Annappa also. According to the witness the police came to the
hospital for drawing inquest panchanama on the dead body of deceased Mahesha, they delivered the dead body to the family of Mahesha. She has
identified the articles collected from the scene of offence as MO.1 and MO.2 and the dress material of his son at MO.3 and MO.4. She also
attributed that the motive behind the commission of crime by the accused is non payment of the alleged demanded money by his deceased son to
accused No.4 Loki who was in the jail at that time. She also identified the accused in the Court. She has also identified two knives at MO.6 and
MO.7 stating the same were used by accused No.1 in the commission of crime and another knife at MO.8 as the one used by another accused
Annappa and a club at MO.9 said to have been used by accused Yashwanth. She was subjected to a detailed cross examination wherein she
adhered to her original version. She gave some more details about the incident and also the role of the accused in the alleged incident.
PW.2 Shankare Gowda, the father of deceased Mahesha and the alleged injured in the incident also has given his evidence in examination in
chief on the lines of what PW.1 has stated. He has narrated about the incident in the same manner how his wife PW.1 has narrated. He has spoken
about their rushing to the place on the night of 15.05.2009 after hearing information about the assault of their son by a neighbor (CW.15) and
seeing that accused Nos.1, 2, 3 and one Yashwanth assaulting their son with weapons. After giving the details of the alleged overt acts said to have
been committed by each of the accused he further stated that when he reached to the rescue of his son he embraced accused No.1 Girish asking
him to stop assaulting his son. At which accused No.2 Vinod stabbed him with a knife on his abdomen and while snatching long (weapon) from the
hand of accused No.1 Giri he (PW.2) sustained injuries on his left hand and right fist. He has also stated that after assaulting them the accused ran
away from the place, but he fell unconscious. It was only in the hospital he regained the conscious, wherein he has given statement to the police on
the 18th day of that month. He has identified his statement given to police at EX.P3 and his signature therein at EX.P3(a). He has identified the
accused in the Court as the accused assaulted his son and him in the incident. He also attributed the same motive of his son (deceased) not meting
the demand of accused No.4 Loki of financially assisting him, as the cause for the alleged crime by them. He was also subjected to a detailed and
searching cross examination, wherein he adhered to his original version.
PW.3 (CW.4) Smt. Gowramma though was projected as an eye witness has not supported the case of the prosecution except stating that
PWs.1, 2 and their deceased son Mahesha were residing in their locality. She has not stated anything about the incident. The prosecution could not
get any support from her even after subjecting her to cross examination.
PW.4 Rukminamma in her evidence has stated that PWs.1 and 2 are her neighbors and deceased Mahesha was their son who was murdered
about one and a half year back. About the incident she stated that on the said night while she was sleeping after 10''o clock in the night she heard
Mahesha crying calling his parents. Hearing the same, she rushed to the house of PW.1 and told them about she hearing the crying of their son
Mahesha. PWs.1 and 2 ran to the said spot. However, she did not go. Both Mahesha and PW.2 had sustained injuries. She came to know that
they were shifted to hospital. She stated that she had not seen the accused earlier. Since the prosecution has projected her as an eye witness, but
she did not support the case to the extent it was expected, it cross examined her with the leave of the Court. However, she did not support the
case of the prosecution in the form of an alleged eye witness.
PW.5 (CW.7) Honnaiah, the elder brother of PW.2 has stated about he visiting the injured and the dead body of Mahesha in the hospital.
About the involvement of the accused in the alleged commission of crime he has not stated anything in his evidence.
PW.6 (CW.3) Siddu has stated that deceased Mahesha was his friend living in a nearby place of his house at about a distance of 100 feet. On
the date of incident Mahesha had been to his house. After receiving a call from his home at 10.05 p.m. Mahesha went towards his home. Within
10 minutes thereafter PW.1 came to his house and thereafter this witness saw the body of Mahesha near the flagpole with injuries. He also joined
the family of injured in shifting the injured to the hospital. The doctor declared the injured Mahesha as ''dead''. Though he was expected to speak
about the incident and his acquaintance with the other accused and also motive behind the crime, but he did not speak anything about the same.
The prosecution after treating him hostile, subjected him to a cross examination wherein also he adhered to his original version. He denied the
suggestions made to him by the prosecution. He was also subjected to a detailed cross examination from the accused side.
PW.7 (CW.16) Dr. Naveen Kumar T has stated about he conducting the post mortem examination on the dead body of deceased Mahesha,
at the request of the police and giving a post mortem report as per EX.P.10. He has listed the injuries found on the body of the deceased as below:
An obliquely placed stab wound measuring 4 cm X 2 cm edges clean cut present over the front of the left chest situated 1.5 cm to the left from
the lipisternum cavity deep.
An obliquely placed stab wound measuring 4 cm X 2 cm edges clean cut, present over the front of the abdomen, situated 1 cm to the right and
just above the umbilicus with coils of intestine protruding out, cavity deep.
An obliquely placed stab wound measuring 4 cm X 3 cm, edges clean cut present over the right outer aspect of the abdomen situated 23 cm
below from the right axilla, cavity deep.
An incised wound, obliquely placed measuring 4 cm X 1 cm present over the left flank (hip bone)
An incised wound obliquely placed measuring 1.5 cm X 1 cm present 1.5 cm below injury No.4.
An incised wound obliquely placed measuring 6 cm X 1 cm present over the outer aspect of the right leg situated 18 cm down from the axilla.
An incised wound, obliquely placed measuring 4 cm X 1 cm present over the inner aspect of the right leg situated 5 cm below injury No.6.
A chop wound measuring 7 cm X 0.5 cm and bone deep present over the left parietal region of the scalp situated 12 cm to the midline from the
top of the left ear.
He also noticed that injury No.1 stab wound has penetrated the thoracic cavity between 6th and 7th ribs, hitting the inter costal muscles and hitting
the pericardial sac and penetrating the apex of the heart. He also noticed injury No.2 stab wound has perforated the coils of intestine and
penetrated the resentry, extravasation of blood present over the retroperitoneal region and resentry. He opined that death was due to shock and
haemorrhage, as a result of stab injuries sustained by the deceased. From the said evidence of the doctor it can be inferred that the doctor has
opined that the death was homicidal. After seeing the weapons in the Court he has further opined that the weapons shown to him are possible to
cause the injures found on the deceased. Nothing more could come out favoring the accused in the cross examination of this witness.
PW.8 (CW.11) Dr. Ramesh T S has spoken about the initial treatment to injured Mahesha in his hospital and noticing that proper treatment
could not be given in his hospital, it was about to refer him to a higher hospital, by that time the injured succumbed to the injuries. His evidence
could not be shaken in his cross examination from the accused side.
PW.9 G K Vishwanath stated that as a Junior Engineer in PWD Department, at the request of the police he drew the sketch of the scene of
offence as per EX.P16.
PW.10 (CW.17) Dr. Addis has spoken about he giving treatment to PW.2 Shankare Gowda who was referred to his hospital with the history
of assault. He has stated that he noticed a stab injury on his abdomen on the right side measuring 6 x 4 cms. He also noticed intestine protruding
from the said injury. He also noticed a lacerated wound on the left forearm of the injured. He has identified a would certificate at EX.P17 stating
the same has been issued by him.
PW.11 N Shivanna the police constable has stated about he joined by his other colleagues, at the instructions of his superior arresting the four
accused in the crime and producing them before their officer.
PW.12 Manu though has not supported the case of the prosecution in the examination in chief, but in his cross examination admitted that
inquest panchanama on the body of the deceased Mahesha was drawn in his presence as per EX.P18. However, PW.13 Shivanna who was also
examined by the prosecution for the same purpose did not support it in any manner and denied that inquest panchanama was drawn in his
presence.
PW.14 L Purushothama has stated about he subjecting 11 articles sent to them by the Investigating Officer in this case for scientific
experiment/examination and submitting his report as per EX.P20. He has also identified the articles examined by him at MO.1 to MO.11. He was
not cross examined from the accused side.
PW.15 N R Venkatesh, the police Sub Inspector of Girinagar police station stated about he arresting accused No.1 to 4 with the help of his
staff and has identified them in the Court.
PW.16 Yadukumar, the police constable stated about he collecting the cloths of the deceased from the doctor who conducted autopsy and
producing it before the Investigating Officer and thereafter on a subsequent day carrying the 11 articles to the Forensic Science Laboratory and
submitting them at the laboratory.
PW.17 Basavaraju has stated that he was also in the team of the police which arrested accused No.1 to 4.
PW.18 Murali though was expected to say that the seizure of the weapon at the instance of the accused was made in his presence, but he
pleaded his ignorance about them. As such, he was treated as hostile, but still prosecution could not get any support from him. The same was the
case with PW.19 - Sathish.
PW.20 Vasudeva N Nayak, the police inspector has given his evidence about he conducting partial investigation in this case. He has stated
about he receiving the case file from Sri Nandakumar, the Station House Officer of Girinagar police station and filing the FIR in the manner and
after going through the file, filing charge sheet in the case. He has also identified a letter of request and a letter of permission with respect to the
change of jurisdiction of the police and permission to carry out the investigation said to have been accorded by the Assistant Commissioner of
Police under exhibits P.25 and P.26.
PW.21 D C Nanda Kumar, then police inspector of Girinagar police station has given a detailed account of the investigation said to have been
conducted by him in the matter. He has spoken about he receiving an information of the alleged incident through his PSI on the night of 15.05.2009
and then running to the hospital only to see that injured Mahesha was dead and other injured was admitted to St. Johns Hospital as an inpatient.
He registered the complaint said to have been given by PW.2 on the same night, submitted FIR to the Court as per EX.P29. According to him on
the next day morning he visited to the place of incident and drew a spot panchanama as per EX.P2 and also recorded the statements of many
witnesses. On the subsequent day i.e., on 20.05.2009 he arrested accused Nos.1, 2, 3 and 4 with the help of his staff and enquired them. He
recorded the voluntary statement given by the accused and as per their voluntary statement joined by panchas he recovered the blood stained
clothes and the weapons produced by the accused by drawing panchanama. He also got prepared and collected sketch of the place of the
offence, received post mortem report, subjected the seized articles to property form and sent the articles to the Forensic Science Laboratory for
their examination. He also obtained opinion of the doctor about the relationship of injuries found on the deceased and the weapons seized by him.
After noticing that place of incident was falling within the jurisdiction of Chennammanakere Achchukattu police station he transferred the case file
along with documents to the said police station. He was subjected to a detailed and searching cross examination from the accused side.
In the light of the above it was the argument of the learned counsel for the appellant that PW.21 D C Nanda Kumar, then police inspector of
the Girinagara police station, Bengaluru who has conducted substantial portion of the investigation in this matter had no territorial jurisdiction to
conduct investigation. According to learned counsel, as could be seen in the scene of offence panchanama at EX.P2, the place of offence falls
within the jurisdiction of Chennammanakere Achchukattu police station, Bengaluru, but not in the jurisdiction of Girinagar police station, Bengaluru.
According to him, the letter to the Assistant Commissioner of Police who is said to have given permission to continue the investigation also does
not vest jurisdiction upon PW.21 in validating investigation done by him.
Learned Additional State Public Prosecution in his argument submitted that PW.21, the Investigating Officer, the moment he came to know
that he had no territorial jurisdiction to continue the investigation has obtained the permission from the jurisdictional Assistant Commissioner of
Police for transfer of the case and handing over further investigation to the Chennammanakere Achchukattu police and that the charge sheet has
been filed by the said Chennammanakere Achchukattu police, which is the jurisdictional police. As such, in the absence of any malafide on the part
of PW.21 it cannot be held that investigation conducted by him does not gets any validity. In this regard learned Additional State Public Prosecutor
also relied upon a judgment of the Hon''ble Apex Court in the case of Satvinder Kaur vs. State (Govt. of N.C.T. of Delhi) and another reported in
AIR 1999 SC 3596 in his favour.
The complaint has been received by Girinagar Police Station, Bengaluru. In the FIR at EX.P29 the place of offence is shown as in front of the
house of one Sri Shivanna at I Main Road, Nargunda college road, Datatreya Nagar, Hosakerehalli, Bengaluru - 85. The said place is shown to
be situated at a distance of 1.5 kms on the southern side of the said police station. However, in the scene of offence panchanama (spot
panchanama) at EX.P2 it is shown that panchanama was written in the place of the junction of third cross, first main road, Dattatreyanagar,
Hosakerehalli, Banashankari third stage, falling within the jurisdiction of Chennammanakere Achchukattu police station, Bengaluru. However, the
first Investigating Officer i.e., PW.21 D C Nanda Kumar who was said to be the Police Inspector of the Girinagar police station had lodged FIR at
the first instance, vide its letter at EX.P28 dated 31.07.2009 and addressed to the Assistant Commissioner of Police, Banashankari Sub Division,
Bengaluru city has stated that as per the order of the Under Secretary to the Home Department of Government of Karnataka G.O.No.50/RLN
3/83-84 dated 04.04.1985 and the order of the Commissioner of Police, Bengaluru dated 23.03.1985 the place of the offence, as noticed by him
was not falling within the jurisdiction of Girinagar police station and that the same would fall within the territorial jurisdiction of Chennammanakere
Achchukattu police station. As such, he has stated that he would be transferring the case to the said Chennammanakere Achchukattu police station
and requested the Assistant Commissioner of Police to direct the said Chennammanakere Achchukattu police to receive the case file. He has also
given the list of the documents he was submitting to the recipient police station.
To the said letter of request to the Assistant Commissioner of Police vide his memorandum No.CC183 ACP(B); 09 dated 16.08.2009, which
is at EX.P25 has accorded permission for the said transfer and instructed the Chennammanakere Achchukattu police to receive the transfer of the
case and to continue the further investigation in the manner and to file charge sheet in the case. Accordingly, the Chennammanakere Achchukattu
police, as could be seen in the evidence of PW.20, have received the case papers and registered a crime in their station crime No.279/2009,
submitted FIR before the Court and thereafter after completing investigation has field charge sheet in the Court.
In Satvinder Kaur''s case (supra) relied upon by learned State Public Prosecutor the Hon''ble Apex Court after referring to Section 482, 156,
177, 178 and 154 of the Criminal Procedure Code, 1973 was pleased to observe that FIR cannot be quashed on grounds that police station did
not have territorial jurisdiction to investigate the offence. Police officer cannot refuse to record FIR and/or investigate for want of territorial
jurisdiction. Thus a bare reading of the said judgment prima facie go to show that a police station projecting the reason that it lacks the territorial
jurisdiction cannot refuse to record FIR and it also cannot refuse to investigate the case for want of territorial jurisdiction.
Section 156 of the Criminal Procedure Code reads as below:
Police officer''s power to investigate cognizable cases: (1) any officer - in - charge of a police station may, without the order of a Magistrate,
investigate any cognizable cases which a court having jurisdiction over the local area within the limits of such station would have power to inquire
into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such
officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.
Sub Section 2 of Section 156 Cr.P.C. clearly stipulates that no proceeding of a police officer in any such case shall at any stage be called in
question on the ground that the Investigating Officer was not empowered under the said Section to investigate. Analyzing the said section the
Hon''ble Supreme Court in Naresh Kavarchand Khatri vs. vs. State of Gujarat and another reported in 2008 (8) SCC 300 was pleased to
observe that the Code of Criminal Procedure has conferred power on the statutory authorities to direct transfer of an investigation from one police
station to another in the event it is found that they did not have any jurisdiction in the matter. The court should not interfere in the matter at an initial
stage in regard thereto if it is found that the investigation has been conducted by an Investigating Officer and who did not have any territorial
jurisdiction in the matter, the same should be transferred by him to the police station having requisite jurisdiction.
In the instant case also PW.21, the Police Inspector after coming to know that Girinagar police station, Bengaluru where he was serving, had
no territorial jurisdiction upon the spot of the offence has immediately after obtaining the permission from his superior i.e., the Assistant
Commissioner of Police has transferred the case to the Chennammanakere Achchukattu police station, Bengaluru which had the jurisdiction over
the place of offence.
The Hon''ble Supreme Court in Rasiklal Dalpatram Thakkar vs. State of Gujarat and others reported in AIR 2010 SC 715 was pleased to
observe that it is not within the jurisdiction of the investigative agency to refrain itself from holding a proper and complete investigation merely upon
arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. The power vested in the investigating agency under
Section 156 of the Criminal Procedure Code does not restrict the jurisdiction of the agency to investigate into a complaint even if it did not have
territorial jurisdiction to do so.
In the instant case PW.21 the Investigating Officer has clearly stated that it was only through the scene of offence panchanama he came to
know that the place of offence falls under Chennammanakere Achchukattu police station, Bengaluru jurisdiction. As such, he has in writing
requested the Assistant Commissioner of Police to direct the said competitive police station to accept the transferred file and to continue the
investigation. However, in the meantime, since the offence was cognizable and heinous he has continued the investigation.
In the light of the two judgments referred just herein above the said act of the investigating officer cannot be considered as making the entire
investigation redundant or invalid. As such, the first argument of the learned counsel for the appellant regarding the jurisdictional aspect is not
acceptable.
Learned counsel for the appellant as his second point of argument submitted that according to Investigating Officer EXs.P33 and P35 are the
voluntary statements made by accused No.1 and accused No.2 respectively, based upon which he said to have conducted the recovery.
According to learned counsel both the accused have disclosed the same information in their voluntary statements. It is thereafter discovery was
made based upon the said voluntary statements. Since the investigating officer has not disclosed as to which was the first voluntary statement
recorded by him and the first discovery made by him, based upon the voluntary statement, the entire alleged recovery aspect loses its sanctity. He
further submitted that based upon the voluntary statement of any one of the accused once the recovery is made, the subsequent alleged recoveries
would be only a rediscovery, but not recovery at the instance of the accused. In his support he also relied upon a decision of the Hon''ble Supreme
Court in the case of Sukhvinder Singh and others vs. State of Punjab reported in 1994(5) SCC 152. In the said case the Hon''ble Apex Court
while dealing with Section 27 of the Evidence Act, 1872 was pleased to observe that rediscovery of a fact already disclosed and capable of
discovery is not contemplated under Section 27. Disclosure statement made by more than one accused leading to one and the same discovery
would only make the disclosure statement made first in point of time alone as admissible in evidence.
Learned Additional State Public Prosecutor in his argument submitted that in the instant case the voluntary statement made by accused No.1
and accused No.2 have ended in recovery of two different articles from two different places. As such, it cannot be considered that the recovery
was from the same place and was of the same article. Thus, the two voluntary statements since have lead to two different discoveries, the decision
relied upon by the learned counsel for the appellant was not applicable.
In the instant case according to the Investigating Officer he recorded the voluntary statements of accused No.1 and accused No.2 as per
EXs.P33 and P35 respectively. He has not stated among the voluntary statements said to have been recorded by him, whose voluntary statement
was recorded at first. However, it is his statement that he recorded statement of accused Nos.1, 2, 3 and juvenile accused Yashwanth on the same
day which was on 20.05.2009. According to the Investigating Officer the accused disclosed the place where they have said to have hidden the
weapon used in the commission of crime and also their blood stained cloth. Accordingly, based upon the said voluntary statement the Investigating
Officer summoned the panchas whom along with the Investigating officer accused lead to a place called Krishnaiah Layout at Ittamadu in
Manjunathanagara. In that place from a under construction building from the first floor accused No.1 Girish is said to have produced a weapon
called long from beneath few bricks. Accused No.2 is said to have produced a knife and a shirt from beneath another piling up of bricks. Thus
though primarily the area from which both the recoveries are said to have been made, but the exact place of discovery of the weapons and cloth
from accused No.1 and 2 are not fully identical, they are from two different set of bricks though in the same area. Further the voluntary statement
of accused No.1 and 2 is also only to the effect of they showing the weapons said to have been used by them in the commission of the crime from
a particular place. As such, since the discovery pertains to two different weapons i.e., a long and a knife and also a cloth in the form of a shirt from
two different spots in a place the discovery cannot be called of a single article from a single place. As such, Sukhvinder Singh''s case (supra),
would not enure to the benefit of the appellant. Thus, the argument of the learned counsel for the appellant regarding the alleged incorrectness in the
recovery also cannot be accepted.
The third main point of argument of the learned counsel for the appellant is on the point that the material omissions and contradictions in the
evidence of PWs.1 and 2 were not considered by the Court below. On this point the learned counsel drew the attention of this Court to the
portions of paragraph No.3 and paragraph No.4 of the examination in chief of PW.1. In the said paragraphs the witness has stated that the
accused No.1 asked the deceased to financially help them to get released accused No.4 from the jail. Further the same witness also has stated that
on the date of accident at 10.15 p.m. hearing the yelling noise outside she told to her husband that the said voice appears to be of their son
Mahesha. As such, her husband went towards the road. Assuming that these two statements made by PW.1 is not stated in the very same passion
before the Investigating Officer and those two statements even if it is taken as improvements, still they would not take away the case of the
prosecution for the reason that apart from those two places in her examination in chief the very same witness has detailed the very same
information in other parts of her evidence also and more particularly, as elicited in her cross examination. Therefore, when the accused themselves
have elicited those informations in her cross examination with more detail, even after discarding her small portion of the statement running to couple
of sentences in her examination in chief, still the said gap has been adequately filled in her cross examination made by the accused.
Same is the case with respect to the evidence of PW.2 also. It was suggested to PW.2 in his cross examination that his statement in
examination in chief to the effect that on 15.05.2009 his son did not return even at 10''o clock in the night and that he told that he would be
returning after dinner at Siddu''s house and at about 10.15 p.m. their neighbor (CW.5) since came out shouting that somebody was assaulting
deceased Mahesha they ran towards the house of Shivanna. No doubt, the Investigating Officer has stated that the said statement was not made
by PW.2 in his statement before him. However, the very same details were also elicited further in the cross examination of the very same witness.
Thus what could have been the improvement in the evidence of PW.2 has since been repeated by the same witness in response to the questions
put to him in his cross examination there can be found no gap in the narration of the details regarding flow of events made by PW.2. As such, the
argument of learned counsel for the appellant on the point of alleged omissions and improvements is also not acceptable.
Finally, it was the argument of the learned counsel for the appellant that according to PW.2 he was not aware of the names of the accused
prior to the incident. As such, the witness stating about the names of the accused cannot be believed. In that regard learned counsel drew the
attention of the court to paragraph No.18 of the examination in chief of PW.2. When the said paragraph is read it can be easily made out that
PW.2 has stated that the houses of all four accused are situated at second and third cross from his house and that he does not know the names of
fathers of those accused and also who were all residing in their respective houses and their occupations. From this it is very clear that nowhere
PW.2 has stated that he does not know the names of the accused or their addresses. PW.2 not knowing the names of the fathers of the accused
and members of their family with their occupations under no stretch of imagination can be taken as PW.2 not knowing the names and identity of the
accused. Therefore, the argument of the learned counsel for the appellant on the said point is also not acceptable.
The defence of the accused was not the denial of the incident and nature of death of Mahesha. The accused have not denied that the death of
Mahesha was homicidal and has taken place on 15.05.2009 at 10.15 p.m. at the place mentioned in the charge sheet and evidenced by the
prosecution. However, it is their contention that it was not the present accused who has caused the homicidal death of the deceased, but it was
somebody else. In that regard the accused have examined two witnesses as DW.1 and DW.2.
DW.1 Madhu L in his evidence has stated that he knows both the deceased and the accused. On the date of incident and at the time of
incident he joined by his friends including DW.2 Dore, has seen the incident. He has stated that while he was seeing, the deceased came near the
place of incident, by that time two persons were assaulting him. Two persons came from the side of his house, father came and two persons also
came. Among them one was holding knife and another person was holding long and they were assaulting the deceased. Those two assailants were
not known to him, after assaulting them ran away from the place. After the incident he went to the house of the deceased to inform them, but the
house was door locked, by enquiry with the neighbor he came to know that mother of the deceased had been to her relatives house.
A reading of the evidence of DW.1 in his examination in chief at para 4 itself is with lot of inconsistencies and raises lot of doubts to believe it.
In the first sentence he says that while he was seeing, the deceased came near the spot of the incident. In the second sentence he has stated that
two persons were assaulting the deceased. Thus it is not known as to how come the deceased was simply coming while he was being assaulted by
two persons. It is because evidence of DW.1 is not that deceased was being assaulted and chased by two assailants. Further in the third sentence
he has stated that at that time those two persons came. From this it cannot be understood who came, where and at what time. In the fourth
sentence he has stated that deceased Mahesha and his father came from the direction of his house, one was holding a knife and another was
holding long and from that they assaulted. It is really confusing as to how come deceased Mahesha who had already reached the place of incident
would once again come along with his father from the direction of the house of DW.1. Further DW.1 has also not stated as to whether the
assailants were holding knife and long, but his evidence gives an impression that it was said Mahesha and his father who came from the direction of
his house were holding those two weapons. Thus regarding the narration of the incident his evidence is totally not believable.
His evidence that after the incident he went to the house of the deceased to inform about the incident is also not believable for the reason that
when DW.1 claims to have standing near that place along with three more persons what the others were doing at that time and why himself joined
by others did not rush to the rescue of their friend deceased Mahesha is not forthcoming. Secondly, when the prosecution evidence has clearly
established that apart from PWs.1 and 2 having heard the yelling noise of Mahesha even their neighbor also rushed to them and informed about the
incident that was taking place which made them to rush to the spot clearly falsifies the evidence of DW.1 that he went to the house of PW.1 and
told by the neighbor that she (mother of the deceased) had been to her relatives'' house. Further his statement in the cross examination that he has
not informed anybody about the murder of Mahesha either to his friend or to the friends of the deceased and also his statement that he had no
difficulty or inconvenience to inform the police giving them the details of the assailants further strengthens the suspicion in disbelieving his evidence,
as such, it is not safe to believe the evidence of DW.1.
DW.2 Dorai also has stated that at the time of incident he joined by DW.1 and other friend were standing near the place of incident chit
chatting among themselves. DW.1 has stated that apart from DW.2 two more persons by name Srinivasa and Harisha were there, whereas DW.2
has stated that apart from DW.1 that was only Srinivasa who was there with them. He has not stated about one Sri Harisha about whom DW.1
has stated. This introduces some doubt about DW.1 and DW.2 being present near the place of incident at that time. DW.2 has stated that at that
time both the deceased and his father came from the direction of the house of DW.1 and near the cross two boys holding knife and long were
assaulting deceased Mahesha. At that time father of Mahesha (deceased) was coming from a distance. When Mahesha fell down his father came
on a bicycle and enquired as to why he was assaulted. Thus statements at a stretch made by DW.2 by themselves makes them unbelievable.
If according to DW.2 both the deceased and his father were coming together, then the question of the father of deceased coming from a
distance or that he coming upon a bicycle after the incident and enquiring about the incident does not arise. Therefore, the very same statements
made by DW.2 in his examination in chief itself makes his evidence not safe to believe. Further, even this witness has also admitted that he has not
stated before anybody about the murder of Mahesha and that he stating about the said murder for the first time in the court. Thus being a friend of
the deceased and claiming to be the eye witness to the incident he not disclosing about the incident before anybody including the police and
revealing his alleged knowledge only in the Court of law at the instance of the accused and as their witness does not inspire any confidence to
believe in his version. As such, not only the defence taken but also the defence evidence lead by the accused does not inspire any confidence to
believe.
Barring the above, the learned counsel for the appellant has not canvassed his arguments on other points including the occurrence of the
incident and homicidal death of deceased Mahesha. As analyzed above evidence of PWs.1 and 2 coupled with the medical evidence of PW.7
read with the post mortem report at EX.P10 clearly establishes that the death of deceased Mahesha was homicidal. The evidence of PWs.1 and 2
which has withstood the test of cross examination successfully has proved beyond reasonable doubt that the accused No.1 and 2 in furtherance of
their common intention and joined by other accused have intentionally caused the death of deceased Mahesha at 10.15 p.m. on 15.05.2009 in
front of the house of one Sri Shivanna at third cross, Dattatreyanagar main road within the limits of complainant police station. As such, we do not
find any reason in interfering in the judgment of conviction, as against the present appellants, passed by the court below.
With respect to the quantum of sentence is concerned, the appellants/accused are ordered to undergo imprisonment for life which is the
minimum sentence that can be ordered for the proven guilt of the parties. The imprisonment for a period of five years and to pay fine ordered
against accused No.2 for the offence punishable under Section 307 of the Indian Penal Code is also not a severe or disproportionate punishment
considered in the circumstances of the light and the proven guilt of the accused. As such, no interference is warranted in the order of sentence
passed by the Sessions Court. Accordingly, we do not find any merit to allow the appeal and as such we proceed to pass the following order.
ORDER
The appeal is dismissed. The judgment of conviction and order on sentence dated 27.07.2012 passed by the Additional Sessions Judge, Fast
Track Court - XIV, CCC, Bangalore City in S.C. No.1072/2009 is confirmed.