Supreme Court of India
VENKATESH @ CHANDRA & ANR. ETCversusSTATE OF KARNATAKA
- Citation
- 2022 INSC 1302
- Decided
- 19 April 2022
- Disposal
- Appeal(s) allowed
- Bench
- UDAY UMESH LALIT
Holding
The conviction under Section 396 IPC and the death sentence were set aside; the accused were convicted under Section 394 read with Section 34 IPC and sentenced to life imprisonment with a fine.
Summary
The Supreme Court considered appeals by four members of the Dandupalya gang convicted of murder and robbery. The trial court had relied on the accused’s voluntary statements recorded by police, shown on DVD, and a chart of gang activities to uphold death sentences under Section 396 IPC. The Court examined the admissibility of those statements under Section 27 of the Evidence Act, holding that self‑implicating portions amount to inadmissible confessions and that the entire DVD recordings could not be used as evidence. It found the prosecution’s circumstantial case incomplete, especially regarding the recovery of ornaments and weapons, and noted that the statutory requirement of five persons for a dacoity under Section 396 was not met. Accordingly, the death sentences were set aside, the conviction was reduced to robbery with hurt under Section 394 read with Section 34 IPC, and the accused were sentenced to life imprisonment with a fine. The judgment also cautioned against media broadcast of investigation material and stressed proper procedure for recording confessions.
Issues considered
- Whether statements made by accused in police custody, including self‑implicating parts, are admissible under Section 27 of the Evidence Act, 1872.
- Whether the entire voluntary statements recorded on DVD and exhibited in court constitute admissible evidence.
- Whether reliance on such statements violates the prohibition on confessions under Sections 24, 26 and 27 of the Evidence Act.
- Whether the prosecution’s circumstantial evidence establishes guilt beyond reasonable doubt.
- Whether the facts satisfy the statutory requirement of five persons for conviction under Section 396 IPC (dacoity with murder).
- Whether conviction under Section 394 IPC (robbery with hurt) read with Section 34 is appropriate.
- Whether the broadcast of the DVD statements on a television programme amounts to impermissible media trial.
- Whether a chart summarising alleged gang activities can be used as evidence for conviction or sentencing.
Legislation cited
- Code of Criminal Procedure, 1973s. 164, s. 428, s. 432, s. 433, s. 433-A
- Indian Evidence Act, 1872s. 24, s. 26, s. 27
- Indian Penal Code, 1860s. 34, s. 394, s. 396
Subjects
Evidence ActSection 27confessioncircumstantial evidencedacoityrobbery with hurtdeath penaltymedia trialbailsentencingKarnatakaDandupalya gang
Judgment
556 SUPREME COURT
[2022]REPORTS
4 S.C.R. 556 [2022] 4 S.C.R.
A VENKATESH @ CHANDRA & ANR. ETC.
v.
STATE OF KARNATAKA
(Criminal Appeal Nos. 1476-1477 of 2018)
B 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
C 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
D 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
E
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
F 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.
G 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
H public platform is not a place for such debate or proof of what
556
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 557
otherwise is the exclusive domain and function of Courts of law – A
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 B
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 C
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
D
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. E
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 F
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
G
come on record. Similarly, 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. All the statements must be read
accordingly. [Para 18][579-C-F]
H
558 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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
B
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
C 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
D
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
E 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
F 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
G 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
H
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 559
Courts would amount to direct interference in administration of A
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 B
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 C
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 D
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 @ E
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 F
[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. G
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.
H
560 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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
B 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
C 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
D 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.
E
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
F 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
G 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
H The Indian Penal Code, 1860
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 561
[UDAY UMESH LALIT, J.]
“I, Dr. Prakash Vishnu, hereby inform that today at about 9.15 A
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
B
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 C
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 D
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.
E
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. F
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 G
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. H
562 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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.
B 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.
C 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
D 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.
E
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.”
F The Post-Mortem Report further stated:
“3. On reflection of scalp blood extraverted all over-scalp skull-
left 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
G 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
H side.”
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 563
[UDAY UMESH LALIT, J.]
7. More than 15 months after the incident, the appellants were A
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:
B
“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 C
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
D
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 E
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
F
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
G
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
H
564 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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
B
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
C 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
D 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:
E
“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
F
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,
G 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
H
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 565
[UDAY UMESH LALIT, J.]
by the side of drainage therein. I have sold the ornaments A
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
B
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 C
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
D
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 E
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. F
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 G
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
H
566 SUPREME COURT REPORTS [2022] 4 S.C.R.
A Mart owned by one D.Janardhana Shetty, as a result of which, following
jewellery items were recovered:-
On 07.02.2001
1. accused No.1- Recovery of three gold bangles
B Venkatesh alias and a pair of gold ear studs.
Chandra
2. accused No.2- Recovery of one gold chain with
Munikrishna two lines mangalya and gold
alias Krishna necklace.
C On 08.02.2001
10. On 09.02.2001, accused No.2 Munikrishna allegedly led the
D 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:-
E “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
F 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
G 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,
H in terms of the FSL Report, later marked as Exh. P-10, blood group
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 567
[UDAY UMESH LALIT, J.]
could not be determined and the tests were inconclusive. The recovered A
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 B
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 C
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.
D
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 E
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 F
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 G
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 H
568 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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
B 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.
C 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,
D 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 video-
E recording 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
F 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
G 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
H him. If at all he wanted to give false evidence or he wanted to
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 569
[UDAY UMESH LALIT, J.]
give evidence with an intention to harass the accused, then there A
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
B
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 C
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
D
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 E
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
F
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 G
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 H
570 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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
B 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.
C
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
D
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
E 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
F
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.”
G
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
H
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 571
[UDAY UMESH LALIT, J.]
house, and then the accused rushed inside the house and committed A
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
B
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 C
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
D
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.” E
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 F
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 G
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.
H
572 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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.
B *** *** ***
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
C 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
D
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
E 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
F
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
G
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
H
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 573
[UDAY UMESH LALIT, J.]
Nos.1 to 4 committed the said offence with utter brutality and A
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 B
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. C
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/ D
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
E
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 F
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 G
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.
H
574 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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
B
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. ………We have discussed at length the evidence of PW-1
and other witnesses who have unequivocally stated before the
C
Court that during the murder of the deceased, the gold ornaments
worn by her were found missing. It is also proved by the
prosecution that the very same articles were recovered from the
possession of the accused. The accused did not furnish any
explanation for the possession of the said ornaments belonging to
D the deceased. Coupled with the above circumstances, the recovery
of the weapons clinchingly establish that the injuries found on the
deceased were caused with M.Os. 16 and 17. Added to that,
knowledge and conduct of the accused in pointing out to the place
of occurrence completes the chain of circumstances establishing
the complicity of accused Nos.1 to 4 in the act of robbery and
E
murder of the deceased. The prosecution therefore has
conclusively proved all the above circumstances which in our
opinion lead to the guilt of accused Nos.1 to 4 beyond all reasonable
doubt. The decisions relied on by the learned counsel for the
appellants-accused are therefore distinguishable on the facts of
F the present case.
71. In the case in hand, the accused were charged under Section
396 read with Section 34 of IPC. The Trial Court has held that the
facts proved against the accused constitute the offence under
Section 396 of the IPC. This finding in our opinion is contrary to
G the provisions of section 396 of IPC. As per section 396 of Indian
Penal Code, in order to constitute the offence of dacoity with
murder, any one of the five or more persons should commit murder
while committing the dacoity. Therefore, participation of five or
more persons is a sine qua non to maintain the charge under
Section 396 of IPC. In the instant case, none of the witnesses
H
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 575
[UDAY UMESH LALIT, J.]
have spoken about the presence or participation of five or more A
persons either in the act of murder or in the commission of robbery.
Even though charges were framed against accused Nos.1 to 5, 6
to 9 under Section 396 of the IPC, the Trial Court has acquitted
accused Nos.6, 7 and 8 on the ground that there is no evidence to
prove the ingredients of the offence against these accused Nos.6,
B
7 and 8. The Trial Court has not recorded any finding to the effect
that in addition to accused Nos.1 to 4, other accused also
participated in the commission of the crime in question. The
circumstances proved by the prosecution, as discussed above,
establish the involvement of only accused Nos.1 to 4. Therefore,
the conviction recorded against accused Nos.1 to 4 under section C
396 of the IPC and the consequent death sentence awarded against
them cannot be sustained. Hence, the conviction of accused Nos.1
to 4 under section 396 r/w. 34 of Indian Penal Code and the death
sentence imposed against them deserves to be set aside.
73. Under Section 394 of Indian Penal Code, not only the person D
who actually causes hurt, but his associates also would be equally
liable to the act by fiction of Law. The expression “if any person,
in committing or in attempting to commit robbery, voluntarily causes
hurt, such person, and any other persons jointly concerned in
committing or attempting to commit such robbery, shall be
E
punished” brings within its purview all other accused involved in
the robbery. As the prosecution has established beyond reasonable
doubt that accused Nos.1 to 4 have committed robbery of the
ornaments of the deceased and in committing robbery have also
caused her death, we are of the view that accused Nos.1 to 4 are
guilty for the offence punishable under Section 394 of IPC, accused F
Nos.1 to 4 are therefore liable for conviction under section 394
read with Section 34 of Indian Penal Code.
74. We have also heard the learned counsel for the accused and
the learned SPP on the sentence. The learned counsel for the
appellants/ accused Nos.1 to 4 plead that the accused have already G
undergone custody for more than 16 years from the date of their
arrest and at the time of arrest, all the accused were of young age
and therefore having regard to the above circumstances, in the
interest of justice, the period of custody already undergone by
them be set off towards the imprisonment to be awarded for the
H
576 SUPREME COURT REPORTS [2022] 4 S.C.R.
A offence under section 394 read with Section 34 of Indian Penal
Code.
75. We have considered the submissions. We do not find any
good reason to take a lenient view in the matter. The material on
record indicate that the accused have committed a ghastly and
B gruesome murder in a highly depraved manner. The facts proved
in evidence go to show that the accused murdered an innocent
aged lady only to rob her valuables. It is a clear case of murder
for gain. The manner in which the accused have inflicted injuries
on the victim indicate the pervert and diabolical tendencies of the
accused. That apart, the prosecution has furnished statistics Which
C
go to show that the accused were involved in similar offences for
which they have been either convicted or are serving sentences.
Therefore, we do not find any reason to show leniency to the
appellants. On the other hand, having regard to the facts and
circumstances of this case, we are of the opinion that the ends of
D justice would require that maximum punishment prescribed under
section 394 Indian Penal Code is awarded to the accused, as the
fact situation of this case requires that the sentence awarded to
the accused should serve as a deterrent. It is also noticed that
several cases are pending against the accused before this Court
wherein it is alleged that the accused have been attacking helpless
E
lonely womenfolk and have been committing ghastly murders by
inflicting injuries inhumanly without showing any mercy
whatsoever to the victims. Hence, we are of the view, that the
accused do not deserve any sympathy at the hands of this Court.
For all these reasons, maximum punishment prescribed under
F Section 394 Indian Penal Code deserves to be awarded on the
appellants/ accused No.1 to 4. Hence the following order:
ORDER
1. Criminal Appeal Nos.799 of 2011 and 637 of 2012 are allowed
in-part.
G
2. The conviction of accused Nos.1 to 4 under Section 396 of
Indian Penal Code and the consequent imposition of death
sentence passed by XXXIV Addl. City Civil & Sessions Judge
(Special Court), Central Prison, Parappana Agrahara, Bengaluru
in S.C.No.443 of 2001 and S.C.No.55 of 2004 is set aside.
H
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 577
[UDAY UMESH LALIT, J.]
3. The accused Nos.1 to 4 are held guilty of the lesser offence A
punishable under Section 394 read with Section 34 of Indian Penal
Code and are accordingly convicted for the said offence. The
accused Nos.1 to 4 are sentenced to undergo rigorous
imprisonment for life and a fine of Rs.25,000/- each for the offence
under section 394 read with Section 34 Indian Penal Code.
B
4. Accused Nos.1 to 4 are entitled for the benefit of set off as
provided under Section 428 of Code of Criminal Procedure subject
to the provision contained in Section 433-A and provided that orders
have been passed by the appropriate authority under Section 432
or Section 433 of the Code of Criminal Procedure.
C
5. Criminal Referred Case No.14 of 2010 stands rejected in terms
of the above order.”
17. In this appeal, we have heard Mr. Lakshmeesh S. Kamath,
learned Advocate for the appellants and Mr. Nikhil Goel, learned
Additional Advocate General for the State. D
18. Before we consider the merits of the matter, some of the
features of the present case which we have found to be quite disturbing
must be noted and deliberated upon. The Trial Court in paragraphs 27 to
30 of its judgment extracted voluntary statements of the appellants. First
and foremost, going by the parameters of Section 27 of the Evidence E
Act4 only so much of information which relates distinctly to the facts
thereby discovered can be stated to have been proved. The extent and
ambit of said provision as well as applicability thereof were considered
by the Privy Council in Pulukuri Kotayya and Ors. v. King-Emperor 5
as under: F
“10. Section 27, which is not artistically worded, provides an
exception to the prohibition imposed by the preceding section, and
enables certain statements made by a person in police custody to
be proved. The condition necessary to bring the section into
operation is that discovery of a fact in consequence of information G
received from a person accused of any offence in the custody of
a Police officer must be deposed to, and thereupon so much of
the information as relates distinctly to the fact thereby discovered
4
The Indian Evidence Act, 1872.
5
AIR (34) 1947 PC 67. H
578 SUPREME COURT REPORTS [2022] 4 S.C.R.
A may be proved. The section seems to be based on the view that if
a fact is actually discovered in consequence of information given,
some guarantee is afforded thereby that the information was true,
and accordingly can be safely allowed to be given in evidence;
but clearly the extent of the information admissible must depend
on the exact nature of the fact discovered to which such
B
information is required to relate.
Normally the section is brought into operation when a person in
police custody produces from some place of concealment some
object, such as a dead body, a weapon, or ornaments, said to be
connected with the crime of which the informant is accused. Mr.
C Megaw, for the Crown, has argued that in such a case the “fact
discovered” is the physical object produced, and that any
information which relates distinctly to that object can be proved.
Upon this view information given by a person that the body
produced is that of a person murdered by him, that the weapon
D produced is the one used by him in the commission of a murder, or
that the ornaments produced were stolen in a dacoity would all be
admissible. If this be the effect of section 27, little substance would
remain in the ban imposed by the two preceding sections on
confessions made to the police, or by persons in police custody.
That ban was presumably inspired by the fear of the Legislature
E that a person under police influence might be induced to confess
by the exercise of undue pressure. But if all that is required to lift
the ban be the inclusion in the confession of information relating
to an object subsequently produced, it seems reasonable to suppose
that the persuasive powers of the police will prove equal to the
F occasion, and that in practice the ban will lose its effect. On normal
principles of construction their Lordships think that the proviso to
s. 26, added by s. 27, should not be held to nullify the substance of
the section. In their Lordships view it is fallacious to treat the
“fact discovered” within the section as equivalent to the object
produced; the fact discovered embraces the place from which
G the object is produced and the knowledge of the accused as to
this, and the information given must relate-distinctly to this fact.
Information as to past user, or the past history, of the object
produced is not related to its discovery in the setting in which it is
discovered. Information supplied by a person in custody that “I
H will produce a knife concealed in the roof of my house” does not
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 579
[UDAY UMESH LALIT, J.]
lead to the discovery of a knife; knives were discovered many A
years ago. It leads to the discovery of the fact that a knife is
concealed in the house of the informant to his knowledge, and if
the knife is proved to have been used in the commission of the
offence, the fact discovered is very relevant. But if to the statement
the words be added “with which I stabbed A” these words are
B
inadmissible since they do not relate to the discovery of the knife
in the house of the informant.”
(Emphasis added)
As was observed by the Privy Council the words - “with which I
stabbed A” were inadmissible since they did not relate to the discovery C
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, out of the statement of accused No.1, only the
following portion except the words printed in “italics” would be admissible D
and can be marked in evidence:
“…..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.” E
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 self-implication, would be
inadmissible as amounting to a confession made to a Police Officer. All
the statements namely, Exhs. P-21 to P-24 must be read accordingly. F
19. We must observe that we have repeatedly found 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 G
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.
H
580 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 20. The other disturbing feature that we have 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 as is noticeable from paragraph Nos.34 and 35 of its judgment.
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
B
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
C exhibiting those DVD statement Exh.P-25 to 28. As a matter of fact, it
went further in relying upon them while concluding the matter on the
issue of conviction.
21. What has further aggravated the situation is the fact that said
statements on DVD recorded by the Investigating Agency were played
D 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
E 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 Courts would amount to direct
F interference in administration of Criminal Justice.
22. The last disturbing feature is the fact that Chart Exh.P-29
was taken to be proof of the activities of the gang to which the appellants
allegedly belonged. Apart from exhibiting the chart, no details or
documents either in the form of chargesheet or orders, depositions
G were produced on record. If the Prosecution wanted the Court to take
note of the fact that there were other matters in which accused were
involved, the concerned Chargesheets should have been produced on
record along with sufficient details including the judgments or orders
of conviction. A mere chart cannot be taken as proof of the involvement
H
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 581
[UDAY UMESH LALIT, J.]
of the accused in other crimes either at the stage of conviction or A
sentence. But that factor seriously weighed with the Trial Court as is
obvious from paragraphs 15 to 18 of the order of sentence. In fact,
such involvement was taken to be one of the reasons why the death
sentence was awarded by the Trial Court. Such a practice can never
be approved.
B
23. We must clarify that 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
C
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 D
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.
E
24. We have gone through Chart Exh. P-29. According to said
chart, in so far as the present appellants are concerned, they were said
to be involved in one more crime which has given rise to Special Leave
Petition (Crl) Diary No.24079 of 2020 and was listed along with the
instant appeal before us. That matter is still pending consideration before
F
us. Therefore, what weighed with the Trial Court was the alleged
involvement of the other members of the alleged gang in so many similar
activities, in support of which there was no concrete material, other than
the confessions of the appellants.
25. Coming to the merits, the present case is based on G
circumstantial evidence and as observed by the High Court in Paragraph
31 of its judgment, four circumstances were relied upon to bring home
the case against the appellants. Before we deal with the material in
support of and connected to said four circumstances, the principles
concerning circumstantial evidence cases must be stated for facility. After
noting various decisions, following principles were noted in the decision of H
582 SUPREME COURT REPORTS [2022] 4 S.C.R.
A this Court in Sharad Birdhichand Sarda v. State of Maharashtra 6,
whichprinciples have since then been followed consistently:
“151. Before discussing the cases relied upon by the High Court
we would like to cite a few decisions on the nature, character and
essential proof required in a criminal case which rests on
B circumstantial evidence alone. The most fundamental and basic
decision of this Court is Hanumant v. State of Madhya
Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ
129] . This case has been uniformly followed and applied by this
Court in a large number of later decisions up-to-date, for instance,
the cases of Tufail (Alias) Simmi v. State of Uttar
C Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55]
and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 :
AIR 1972 SC 656] . It may be useful to extract what Mahajan,
J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952
SCR 1091 : 1953 Cri LJ 129] :
D “It is well to remember that in cases where the evidence is
of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
E Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to
leave any reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as to show
F that within all human probability the act must have been done
by the accused.””
Thus, the first principle is that the circumstances on the basis of
which the conclusion of guilt is to be drawn, must be fully established.
G 26. We may now deal with the circumstances to consider whether
the prosecution has been able to establish them.
27. The initial reporting in the case was made by Dr. Prakash
Vishnu son of the deceased. In that reporting, nothing was alleged about
6
H AIR 1984 SC 1622 = (1984) 4 SCC 116
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 583
[UDAY UMESH LALIT, J.]
the missing ornaments. However, the Inquest Report noted injuries on A
the earlobes which were specified in detail in Post Mortem Report (Exh.P-
14). Injuries 11 and 12 of the said Post Mortem Report are quite clear.
Further, the statement of PW-1, the husband of the deceased, recorded
soon after the incident did refer to the normal ornaments which were
missing. It may therefore be taken to have been established that the
B
missing of gold and silver ornaments from the person of the deceased
was quite simultaneous with the murder of the deceased. The first
circumstance propounded by the prosecution in support of its case was
thus well established.
28. We may now deal with the second circumstance regarding
recovery of the missing ornaments at the instance of the appellant. It C
must be noted that the appellants were arrested 15 months after the
incident. Soon after their arrest their voluntary statements Exhs. P-21,
22, 23 and 24 were recorded on 01.02.2001. These voluntary statements
do indicate the willingness on the part of the appellants to show the shop
in which the items of jewellery were sold by them. However, the actual D
recoveries from the concerned shop were made only on 7th and 8th
February, i.e. more than 7 days after the voluntary statements. There is
no explanation why it took so much time for the Investigating Machinery
to take the accused to the concerned shop. Further, the shop owner
could not produce any register or documentation that any of the appellants
had come to his shop on a particular day and sold the concerned ornaments. E
We must therefore go only by his oral assertions and not any
contemporaneous record. The description of the ornaments, the weight
of the ornaments and the price paid by the shop owner to the appellants
and such other details are not forthcoming from any record. It definitely
means that the ornaments were not purchased by the jeweller in regular F
course of his business and he must be taken to be aware that the
ornaments were a stolen property. Even then, the ornaments were kept
in the same condition by the jeweller for more than 15 months, which
again is not quite consistent, as in normal circumstances the nature of
such stolen property would be attempted to be changed as early as
possible. G
The crucial aspect is that even after the recovery of the ornaments,
no Test Identification Parade was arranged by the Investigating
Machinery. The ornaments worn by the deceased were normal
ornaments which a lady would wear. Out of three witnesses examined
H
584 SUPREME COURT REPORTS [2022] 4 S.C.R.
A by the Prosecution, the mother and the sister of the deceased did not
support the case of the prosecution on identification of the ornaments.
The only person who supported the case was the husband of the deceased
who was not subjected to any Test Identification Parade.
The missing links in this circumstance are quite crucial and
B important. We, therefore, do not hold this circumstance to have been
fully established and the connection of the appellants with the missing
ornaments cannot be said to have been established.
29. We now turn to the third circumstance which is about recovery
of iron rod M.O.- 16 and knife M.O.-17. As the statements of the
C appellants indicate, these objects were thrown by them near the fence
erected by the side of a drainage. The objects were said to have been
recovered 15 months later and yet were carrying blood stains sufficient
enough for the Chemical Examiner to analyze and report that it was
human blood. First and foremost, the objects, going by the case of the
D prosecution, went completely unnoticed all the while by anyone. During
this period of 15 months, the concerned area must have received rain
showers on number of occasions. Additionally, there would be insects
and other living beings who may feed on the blood stains present on
these objects. It is impossible to believe that even after 15 months the
material objects would still carry bloodstains. The chemical examination
E also simply found the bloodstains to be of human blood but failed to
analyze the blood group and other details which could be associated
with the deceased. Considering the fact that the objects were supposed
to have been thrown 15 months earlier in a place which was accessible
to everyone and was open to the vagaries of nature, we do not accept
F said circumstance to have been proved. In our view, this circumstance
cannot be held against the accused.
30. We may hold the fourth circumstance to be proved. It is not
as if that the prosecution was unaware about the place of occurrence
but the fact that the appellants could point the house where the incident
G had occurred may show knowledge on their part about the place of
occurrence.
31. Thus, out of four circumstances projected by the prosecution,
the second and the third circumstances must be eschewed for
consideration while seeing whether the circumstances form a chain of
H
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 585
[UDAY UMESH LALIT, J.]
evidence so complete as not to leave any reasonable ground for the A
conclusion consistent with the innocence of the accused and whether
they rule out every possible hypothesis except the one to be proved by
the prosecution. In this analysis, we are guided by the approach which
must be adopted in such matters as has been observed in Musheer
Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh7. The
B
relevant passages from the judgment are:
“39. In a case of circumstantial evidence, one must look for
complete chain of circumstances and not on snapped and scattered
links which do not make a complete sequence. This Court finds
that this case is entirely based on circumstantial evidence. While C
appreciating circumstantial evidence, the Court must adopt a
cautious approach as circumstantial evidence is “inferential
evidence” and proof in such a case is derivable by inference from
circumstances.
40. Chief Justice Fletcher Moulton once observed that “proof does D
not mean rigid mathematical formula” since “that is impossible”.
However, proof must mean such evidence as would induce a
reasonable man to come to a definite conclusion. Circumstantial
evidence, on the other hand, has been compared by Lord Coleridge
“like a gossamer thread, light and as unsubstantial as the air itself
and may vanish with the merest of touches”. The learned Judge E
also observed that such evidence may be strong in parts but it
may also leave great gaps and rents through which the accused
may escape. Therefore, certain rules have been judicially evolved
for appreciation of circumstantial evidence.
F
41. To my mind, the first rule is that the facts alleged as the basis
of any legal inference from circumstantial evidence must be
clearly proved beyond any reasonable doubt. If conviction rests
solely on circumstantial evidence, it must create a network from
which there is no escape for the accused. The facts evolving out
of such circumstantial evidence must be such as not to admit of G
any inference except that of guilt of the accused. (See Raghav
Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1
Cri LJ 70] )
7
(2010) 2 SCC 748. H
586 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 42. The second principle is that all the links in the chain of evidence
must be proved beyond reasonable doubt and they must exclude
the evidence of guilt of any other person than the accused.
(See State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC
300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para
20.)
B
43. While appreciating circumstantial evidence, we must
remember the principle laid down in Ashraf Ali v. King
Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when in
a criminal case there is conflict between presumption of innocence
and any other presumption, the former must prevail.
C
44. The next principle is that in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence
of the accused and are incapable of explanation upon any other
reasonable hypothesis except his guilt.
D 45. When a murder charge is to be proved solely on circumstantial
evidence, as in this case, presumption of innocence of the accused
must have a dominant role. In Nibaran Chandra Roy v. King
Emperor [11 CWN 1085] it was held that the fact that an accused
person was found with a gun in his hand immediately after a gun
was fired and a man was killed on the spot from which the gun
E
was fired may be strong circumstantial evidence against the
accused, but it is an error of law to hold that the burden of
proving innocence lies upon the accused under such
circumstances. It seems, therefore, to follow that whatever force
a presumption arising under Section 106 of the Evidence Act
F may have in civil or in less serious criminal cases, in a trial for
murder it is extremely weak in comparison with the dominant
presumption of innocence.
46. The same principles have been followed by the Constitution
Bench of this Court in Govinda Reddy v. State of Mysore [AIR
G 1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted
the principles laid down in Hanumant Govind Nargundkar v.
State of M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio
in Govind [AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR
para 5, p. 30 of the Report in Govinda Reddy [AIR 1960 SC 29
: 1960 Cri LJ 137] are:
H
VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA 587
[UDAY UMESH LALIT, J.]
“5. … ‘10. … in cases where the evidence is of a circumstantial A
nature, the circumstances [which lead to the conclusion of guilt
should be in the first instance] fully established, and all the
facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and they should
B
be such as to exclude every hypothesis but the one proposed
to be proved. In other words, there must be a chain of evidence
so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it
must be [shown] that within all human probability the act must
have been [committed] by the accused.’ [ As observed C
in Hanumant Govind Nargundkar v. State of M.P., AIR 1952
SC 343 at pp. 345-46, para 10.] “
The same principle has also been followed by this Court
in Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607 :
1974 SCC (Cri) 643 : AIR 1974 SC 1144]” D
32. We are, thus, left with only two circumstances, namely; first
and the fourth circumstances. Before we consider them, a submission
advanced on behalf of the State on the basis of Chart Exh.P-29 must be
dealt with. According to the said Chart, the appellants belonged to a
particular gang which was indulging in crimes of similar nature and as E
observed by the Trial Court in its order of sentence dated 30.09.2010,
there were about 111 cases registered against the members of the gang.
However, as stated earlier, not a single document either in the form of a
Chargesheet order, depositions or orders were produced on record. A
mere chart giving description of offences, numbers and the sections of F
the offences and about the nature of offences cannot be taken into
account at the stage of conviction.
33. Weighing the first and the fourth circumstances on the
touchstone of the principles accepted by this Court, in our view, the
Prosecution has not been able to discharge the burden to such an extent G
that the presumption of innocence weighing in favour of the accused
stands displaced. As a matter of fact, with the non-establishment of the
second circumstance, the first circumstance by itself does not point in
the direction of the appellants. In any case, the first and the fourth
circumstances are wholly inadequate. They do not form a consistent
H
588 SUPREME COURT REPORTS [2022] 4 S.C.R.
A chain leading to a hypothesis sought to be proved by the Prosecution.
We, therefore, grant benefit of doubt to the appellants and acquit them
of the charges levelled against them. They be set at liberty unless their
custody is required in any other case.
34. The appeals are allowed accordingly.
B
Devika Gujral Appeals allowed.
(Assisted by : Mahendra Yadav, LCRA)
C
D
E
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Evidence Act"Sign in to search