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Karnataka High Court · body

2007 DIGILAW 771 (KAR)

Yusuf Bachakhan v. State of Karnataka

2007-11-28

K.SREEDHAR RAO, R.B.NAIK

body2007
JUDGMENT The deceased one Subbaraju entered into an agreement with PW-19 for purchase of a prime property in Cunningaham Road, Bangalore. One K.L. Swamy (PW-22) entered into an agreement with one Ahmad Khan, GPA holder of PW-21 for the purchase of the very same property. The rival claims by the deceased and PW-22, resulted in filing of number of Civil suits. 2. It is the case of the prosecution that PW-22 sought the intervention of A-1 for resolution of the dispute. A-1 during that time was staying at Dubai, telephoned to the deceased Subbaraju and also to CW-1 (son of the deceased Subbaraju) advising them to enter into a smooth settlement with PW-22, else threatened dangerous consequences. The deceased and CW-1 refused to be cowed down by the threat of A-1 and rejected the advise of settlement with P.W. 22. A-1 angered by the conduct of the deceased, directed A-2 (henchmen of A-1) to carry out the murder of Subbaraju. A-2 and A-8 employed A-3 and A-4, the professional mercenaries who are residents of Bombay. A-5 and A6 are residents of Bangalore and followers of A-1, were engaged to keep watch on the movements of Subbaraju and to assist A-3 and A-4 to properly identify and target Subbaraju. Couple of days before the incident, A-5 and A-6 are found wandering around the scene of offence in a suspicious manner which was noticed by PW 1 (S/o Subbaraju and an eye - witness to the incident) and PW3, the watchman of the premises where the incident took place. 3. On 5.1.2001 at 5.30 PM, the deceased Subbaraju, CW-1 and PW-1 were in their office situated at Seshadripuram main road. PW-3 was the watchman on duty stationed outside the office premises. A-3 and A-4 barged into the office premises fired shot at Subbaraju with the revolver causing injuries on the forehead and the chest. CW-1 and PW-1 tried to rescue and apprehend A-3 and A-4 while they were running away. PW-3 who was outside the premises, saw shooting and also observed A-3 and A-4 running away towards Swastik circle. PW-1 chased A-3 and A-4. A-3 and A-4 get into an auto and moved rowards Anandrao circle. PW-1 informs the PW2 (duty constable) standing outside the police station near Swastik circle and requested him to catch the culprits fleeing away in the auto. PW-1 chased A-3 and A-4. A-3 and A-4 get into an auto and moved rowards Anandrao circle. PW-1 informs the PW2 (duty constable) standing outside the police station near Swastik circle and requested him to catch the culprits fleeing away in the auto. A3 and A4 got into the auto and were proceeding towards Anandrao Circle. PW1 and PW2 chased the auto. A-3 and A-4 brandished revolver against PW-1 and PW-2 threatening not to chase them. The auto is stopped at the signal point at Anandrao circle. A-3 and A-4 get down from auto and run away towards Kapali Theatre. In the process, a mobile phone slipped of from the pocket of the accused. PW2 seized the mobile phone. A-3 and A-4 however successfully escaped. After successful completion of the mission, A-5 and A-6 telephoned A-7 (Advocate) telling that the murde mission is completed. Subbaraju was taken to Mallige hospital accompanied by CW-1. At the hospital, CW-1 lodges Complaint (Ex.P-1) to the police at 6.30 pm. The case is registered. 4. In the course of investigation, it reveals that A-1, in an interview to a weekly “Hai Bangalore” makes extra-judicial confession to PW20 that he got Subbaraju killed by his men. A-5 and A-6 are apprehended on 10.1.2001 at Bombay. The photographs of A-3 and A-4 is secured by PW-24 (IO), PW-1 to PW-3 and CW-1 are shown the photographs of A-3 and A-4 and they are identified as they are the assailants who killed Subbaraju. A-3 and A-4 are apprehended on 12.7.2002 and 24.7.2002 respectively. The IO got the TI parade conducted on A-3 and A-4. PW 1 to PW3 have identified A-3 and A-4 correctly in the TI parade and have also identified A-3 and A-4 during the trial. PW-20 is one Ravibelagere, a journalist before whom A-1 had made extra-judicial confession of killing Subbaraju by his men. PW20 has turned hostile and does not support prosecution version regarding confession of A1. 5. A-2 and A-8 are absconding and case against them is split up. A-1, A-3, A-7 have faced trial. At the voluntary instance of A-3, the revolver -MO-1 used for commission of the offence is seized which was at that time recovered from the possession of one Munna, a co-accused along with A-3 and A-4 in Crime No. 24/2001 on the file of MCOCA (Special Court), Bandra police, Bombay. A-1, A-3, A-7 have faced trial. At the voluntary instance of A-3, the revolver -MO-1 used for commission of the offence is seized which was at that time recovered from the possession of one Munna, a co-accused along with A-3 and A-4 in Crime No. 24/2001 on the file of MCOCA (Special Court), Bandra police, Bombay. The revolver seized is subjected to scrutiny of ballistic expert. The Ballistic Expert’s report discloses that the bullet seized from the body of the deceased are the one fired from MO-1. 6. The Court on the basis of the evidence of PW1 to PW3, Ballistic expert - PW31 has found A3 guilty. A1, A4 to A7 are acquitted. The case against A2 and A8 is split up. A3 is in appeal against the order of conviction. The State has filed appeal against the order of acquittal. 7. Sri Anis Ali Khan, learned Counsel appearing for the appellant-accused strenuously pointed out the following fallacies and discrepancies in the prosecution case:- (1) A.3 is arrested when he was in custody in a criminal case at Delhi and was brought under body warrant on 12.7.2002. A.4 is arrested on 24.7.2002 who was in custody in connection with a criminal case at Bombay, and was brought under body warrant. The T.I. Parade of A.4 is conducted on 17.8.2002 whereas the T.I. Parade of A.3 is conducted on 12.11.2002. There is a delay in conduct of TI parade of A3 and it is not simultaneously conducted along with that of A4. Therefore the evidence of TI parade against A3 is to be rejected. (2) It is in the evidence of PW1 to PW3 that the photographs of A.3 and A.4 were shown a week after the incident and even before they were arrested. Therefore PW 1 to PW 3 were already made known of the features of A3 and A4. Hence the TI parade has no credibility in law. (3) The I.O. gets the clue of A3 and A4 after arrest of A5 and A6 and also gets the photograph of A3 and A4 from PW24, but in the remand applications the names of A3 and A4 in not shown as assailants. Hence non-mention of names of A3 and A4 in remand application dated 9.3.2001 dents the prosecution version and suggests that the false case is concocted against A3. Hence non-mention of names of A3 and A4 in remand application dated 9.3.2001 dents the prosecution version and suggests that the false case is concocted against A3. (4) The theory that mobile phone - M.O.20 fell down from the pocket of the accused when they were running away at Anandrao Circle and the same was seized by PW2 is not corroborated by the evidence of PW1. (5) The revolver M.O. 1 was taken from the custody of Criminal Court at Bombay in connection with Crime No. 24/2001. The pistol at that time had 4 cartridges and one hole was vacant when it was taken to Bangalore. But the evidence otherwise discloses that all the holes were filled with cartridges in M.O.1 when sent to Ballistic Expert. This evidence shows that M.O.1 is tampered. (6) MO.1 was recovered from the possession of one Munna, the accused in Cr. No.24/2001 on the file of the Bandra Police, in respect of an offence committed on 25.2.2001 and was produced before the Criminal Court. The prosecution has not placed any evidence how MO.1 was delivered by A3 to Munna. (7) A3 does not accompany the Police for effecting recovery of possession of MO.1. The procedure followed in recovery of MO.1 is not in conformity with the Provisions of Section 27 of the Evidence Act. The accused Munna is convicted for illegal possession of MO.1 by the Criminal Court at Bombay. A3 is also an accused in the said case and is acquitted. The copy of the judgements is produced under Section 391 of Cr.P.C. 8. It is imperative that T.I. parade should be conducted as early as possible after the arrest of the accused. The proceedings ot the order sheet of the trial Court discloses that A.3 was arrested and got detained in connection with a criminal case at Delhi when he was brought under body warrant. A3 was also wanted in a criminal case at Bombay. For limited purpose, A-3 was brought under body warrant on 12.7.2002 and was given to the Police custody for the purpose of interrogation. A.3 was in Police custody till 26.7.2002 A.3 was remanded to the judicial custody by the trial Court. However on 27.7.2002, A3 was taken by Bombay Police for the purpose of trial at Bombay and he was brought to Bangalore under body warrant only on 5.11.2002. A.3 was in Police custody till 26.7.2002 A.3 was remanded to the judicial custody by the trial Court. However on 27.7.2002, A3 was taken by Bombay Police for the purpose of trial at Bombay and he was brought to Bangalore under body warrant only on 5.11.2002. Hence A.3 was not available for conducting TI parade till 5.11.2002. Thus the delay in conducting TI parade is convincingly explained. 9. It is in the evidence of prosecution that PW.24 had secured the photographs of A.3 and given it to PW.27. PW.27 showed the photographs to PW1 to PW3 inthe Police station a week after the incident before the arrest of A.3 and A.4 PW1 to PW3 testify to the fact that they had clearly observed the features of A.3 and A.4 at the time of the incident and they identified the persons in the photographs as A.3 and A.4 who caused shoot out against Subbaraju. The photographs of A3 and A4 is shown for the purpose of identification of the accused and not for the purpose of tutoring. PW1 to PW3 states that they have clearly observed the features of A.3 and A.4 at the time of the incident and they did identify the photographs sometime immediately after the incident, before the accused are arrested. PW1 to PW3 have correctly and categorically identified A.3 before the Court as the person who short Subbaraju. 10. The fact that PW1 does not corroborate the seizure of mobile phone - M.O.20 at Anandrao Circle which fell down from the pocket of the accused is not a ground to disbelieve the entire theory of prosecution. The evidence of PW1 to PW3 with regard to identification of A.3 in the T.I. Parade is quite convincing and there is no ground to reject the evidence of PW1 to PW3 in this regard. 11. The non-mention of names of A3 and A4 in the remand application dated 9.3.2001 is quite understandable because A3 and A4 are professional mercenaries possibly with several assumed names. It may be that photographs of A3 and A4 are collected but there is no evidence to show that I.O. has correct information of their names. Hence, non - mention of names of A3 and A4 in the remand application is not fatal to the prosecution case. 12. It may be that photographs of A3 and A4 are collected but there is no evidence to show that I.O. has correct information of their names. Hence, non - mention of names of A3 and A4 in the remand application is not fatal to the prosecution case. 12. The descrepancy regarding the number of cartridges in M.O.1 was taken from the possession of Criminal Court at Bombay and it was sent to Ballistic Expert is not of serious nature. The Ballistic Report show that the bullets removed from the body of Subbaraju is fired from MO.1. At the voluntary instance of A.3, M.O.1 is discovered, which is evident from Ex.P.104 and P.106 The Revolver -Mo.1 was taken possession from the Criminal Court at Bombay and later on, the MO.1 is subjected to P.F as per Ex. P. 107. PW. 27 testify to the fact that on the voluntary information of A3, M.O.1 is collected from the Criminal Court at Bombay. 13. The contention that the above MO.1 was seized from Munna and that Munna was not examined. Therefore, the evidence with regard to recovery of M.O.1 to be rejected is an untenable argument. The M.O.1 was recovered from Munna long after the commission of offence at Bangalore. If M.O.1 was used by Munna prior to the commission of offence at Bangalore and was seized from him, the prosecution case should have been doubted. But the facts are otherwise and do not show that MO.1 could not have been used for committing the offence at Bangalore, that apart, the Ballistic Experts evidence establishes that the bullets recovered from the body of Subbaraju are fired from MO.1. 14. The Supreme Court in the case of State (N.C.T. Of Delhi) vs. Navjot Sandhu (AIE 2005 SC 3820) popularly called as ‘Parliamentary Attack Case’, at Para-13 has made the following observation. “.... We need not delve further into this aspect as we are to the view that another ingredient of the Section, namely, that the information provable should relate distinctly to the fact thereby discovered is not satisfied, as we see later, when we refer to the circumstances against some of the accused. There is one more point which we would like to discuss i.e., whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. There is one more point which we would like to discuss i.e., whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant-accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence....” 15. The observations of the Supreme Court makes it clear that it is not necessary under Section 27 that the accused should personally lead the Police to point out the place where the incrimination article is found. It is sufficient if on the voluntary information of the accused, the incriminating article is found at the place stated by the accused which constitute a legal discovery U/s 27. In the instant case, Exs.P.103, P.106 and P.107 coupled with the evidence of PW.27 conclusively establishes that MO.1 was seized at the voluntary instance of A3. The Ballistic evidence disclose that the bullets found in the body of Subbaraju are fired from M.O.1. In the instant case, Exs.P.103, P.106 and P.107 coupled with the evidence of PW.27 conclusively establishes that MO.1 was seized at the voluntary instance of A3. The Ballistic evidence disclose that the bullets found in the body of Subbaraju are fired from M.O.1. On overall appreciation to the evidence, we are of the view that the prosecution has successfully proved the guilt of A.3 and the conviciton of A3 is sound and proper. 16. A.4 died during the pendency of the appeal. Therefore, the appeal against A4 abates. The case against A.2 and A.8 is split-up and they are yet to face trial. A.5, A.6 and A.7 have been acquitted. It is to be noticed that there is absolutely there is no evidence against A.7 for filing the charge sheet against him. A.7 is implicated only on the voluntary statement of A.5 and A.6 There is no independent corroborative material to prove involvement of A.7. The fact that through mobile phone - M.O.8, telephone calls were made to A7 by A5 and A6 is not an incriminating circumstance to prove the guilt. In so far as A.5 and A.6 are concerned, it is the contention of the prosecution, that MO.1 was sent in a parcel from Bombay by A.2 to A.5 and A.6 through PW6 and PW7 and that A5 and A6 inturn delivered MO.1 to A.3, is again a very loose piece of evidence, that apart, PW6 and PW7 have turned hostile and do not support the case of the prosecution. 17. It is the case of the prosecution that A3 and A4 purchased M.O.8 and SIM card from PW5 and with M.O.8 they made call to PW7 after the incident. The evidence of PW5 regarding the sale of M.O.8 and SIM card to A3 and A4 is an artificial evidence. PW5 is a dealer in mobile phones. It would not possible for PW5 to specifically remember the sale made to A3 and A4 when he is selling several mobile phones every day. 18. The evidence of PW1 and PW3 that A.5 and A.6 were moving suspiciously even prior to the incident near the premises and also on the date of the incident, is an artificial and a feeble evidence. The place where the offence took place is a very busy commercial locality and thousands of people visit. 18. The evidence of PW1 and PW3 that A.5 and A.6 were moving suspiciously even prior to the incident near the premises and also on the date of the incident, is an artificial and a feeble evidence. The place where the offence took place is a very busy commercial locality and thousands of people visit. If really A.5 and A.6 were suspicious indicating any danger or threat, PW.1 and deceased would have taken warning and definitely taken steps to avoid the imminent danger visiting on them. Therefore on overall assessment evidence, we find that acquittal of A5, A6 and A7 is sound and proper. 19. As against A1, the prosecution tried to make out a case of extra-judicial confession made to PW20, but PW20 has turned hostile and does not depose to the effect that it was A1 who confessed the commission of crime through his agents in the telephonic conversations . The extra-judicial confession is the only piece of evidence against A1, the prosecution has failed to prove the theory of extra-judicial confession of A1, in that view, acquittal of A1 for want of evidence is sound and proper. 20. While hearing the appeal we have noticed some disturbing and disgusting facts in the conduct of investigations. One K.L. Swamy examined as PW22, was in fact initially named as accused during the course of investigation but paradoxically and surprisingly PW22 is given up as an accused and is made a witness for the prosecution in the charge sheet. PW22 is a pivotal person in the incident and because of his rival claim over the disputed property the incident takes place. But for PW22 there was no motive for the accused persons to commit murder of Subbaraju. The scheme of events suggests that PW22 should have been necessarily arrayed as an accused but strangely given up by the prosecution. So much so, there is absolutely no evidence against PW7 except the inadmissible voluntary statement of A5 and A6 made before the police. It is well settled all that on the solitary statement of no conviction can be secured and no charge sheet can sustain in law, yet A7 is charge sheeted. 21. So much so, there is absolutely no evidence against PW7 except the inadmissible voluntary statement of A5 and A6 made before the police. It is well settled all that on the solitary statement of no conviction can be secured and no charge sheet can sustain in law, yet A7 is charge sheeted. 21. The tendency on the part of investigating agency to dishonestly concoct statements of witness under Section 161 Cr.P.C. and deliberately to incorporate a material helpful to the defence in order to benefit the accused at trial has become a rampant practice. 22. The provision of Sec. 36 of Cr.P.C. Reads thus : “Police Officers superior in rank to an officer-in-charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station” The Police Officers of superior rank are given concurrent powers to supervise/conduct investigation of the crimes in their local jurisdictional area to which they are appointed. The Superintendent of police is normally an IPS Officer heads the district unit under his supervision and control Additional Superintendent of Police, Deputy Superintendent of Police, Circle Inspector / SHO and other lower rung officials function. It is common place that only in high profile cases, the senior rank police officers supervise/guide the investigations without recording their participation in the charge sheet. No doubt SHO has full powers to file the charge sheet. The neglect of supervision on the part of senior rank Police Officers has resulted in rampant practice of malafide investigations resulting in letting the criminals go scot free with out the trial in some cases and in other cases ending in unjust acquittals. In order to arrest the trend of malafide investigations it is necessary that the senior police officers including the Superintendent of Police should in every case invariably and actively get involved in supervising/guiding the investigation conducted by SHOs. The Superintendent of Police normally of IPS rank who are accountable to the President of India, enjoy greater functional freedom than the non-IPS officers. The Superintendent of Police normally of IPS rank who are accountable to the President of India, enjoy greater functional freedom than the non-IPS officers. In order to ensure the involvement and participation of the Superintendent of Police and other Senior officers, it is necessary that the police should be properly amended and necessarily circular instructions to be given to obligate the Superintendent of Police to scrutinize all the charge sheets of the cases triable by the Sessions Court and making the endorsement of his scrutiny on the charge sheet mandatory. In respect of warrant trial, the scrutiny of the charge sheet and endorsement to that effect on the charge sheet by ASP/DCP should be made mandatory. The suggested procedure would obviate the evil of money power and political influence to a great extent and would assure a greater level of integrity in the conduct of investigations. The suggested procedure would be totally in conformity of the provisions of Sec. 173 Cr.P.C. Since Sec. 36 of Cr. P.C. if read conjunctively, the Senior Rank Police Officers do have concurrent power of investigations along with SHO. 23. The registry is directed to send copy of this order ot the Home Secretary and the Director General of Police for proper compliance of the order. 24. The request of the learned Counsel seeking leave to appeal is rejected since the appellant has right to file an appeal before the Supreme Court. Both the appeals are disposed of accordingly.