Paragraph numbers below are the court’s original numbering, recovered from the source text.
4. Learned counsel for the accused appellants submitted that the circumstances relied on clearly established the accusations and the only case is recovery under Section 27 of Indian Evidence Act, 1872 (in short the 'Evidence Act'). The present appellants are A-1, A-6 and A-7 so far as these c appeals are concerned.
5. The basic challenge is that on the basis of statement made uhder Section 27 of the Evidence Act the conviction cannot be maintained because it cannot be said that the circumstances have been established.
6. Learned counsel for the respondent-State on the other hahd supported the judgment.
7. As regards the involvement of the other accused, the ptosecution relied on the recovery of the motorcycle in furtherance of the voluntary information furnished by the accused No.6. The said accused was arrested on 11.2.2005 and as spoken to by P .W.20 investigating officer, in furtherance of the voluntary information furnished by him, they went to the river near Chickakhandi where a place in the river was shown by the accused No.6 as the place, where motor cycle had been drowned. P.W.15-Lavappa Laxmappa Nagaral had been taken there and he went into the river at the place shown by the accused No.6 and brought up the motorcycle M.0.15. The said motorcycle was later identified as that of Namadev. The cross- examination of P.W.15 does not show anything to doubt his version.
8. It was submitted by the appellants that according to P.W.16, the accused Nos.1 and 6 were seen in the police station on 3.2.2005 and this theory of the accused No.6 being A arrested on 11.2.2005 and on his voluntary information furnished on that day, the motor cycle having been recovered in presence of P.W.15, cannot be believed. Of course P.W.16 in the cross-examination says that when he went to the police station, he saw the accused Nos. 1 and 6. It was submitted by B the State that perhaps it may be a typographical mistake and it may be the accused Nos.1 and 2 since the records show that it is the accused Nos.1 and 2, who had been arrested on 3.2.2005. The possibility of typographical mistake is possible. However, even then taking into consideration the contention of c the learned counsel for the appellants, at the most it may amount to an illegal custody by the police till 11.2.2005, thereafter recovering the motorcycle on 11.2.2005.
That may create some doubt regarding the claim of the police with regard to the recovery. But considering the evidence of P.W.15, we find that 0 this suspicion is unfounded. It is quite possible that the police detained accused no.6 unnecessarily from 3.2.2005 to 11.2.2005. We find no reason to discard the alleged recovery of motorcycle in furtherance of the information furnished by accused No.6. As regards the accused No.2, the prosecution relies on the deposition of P.W.7 who saw the accused Nos.1, E 2, 6 and 7 near the canal at about 3 a.m. of 31.1.2005. In addition P.W.12 saw the accused Nos.1, 2, 6 and 7 near the bridge. Earlier on 30.1.2005 at about 11.00 p.m. all those four persons had been spotted by P.W.16. All these depositions conclusively show that from 11.00 p.m. on 30.1.2005 till about F 4.00 a.m. of 31.1.2005, the accused Nos.1, 2, 6 and 7 were seen together. On complete perusal of the evidence, we find that on 30. 1:2005 Namadev left his house at 4.00 p.m. and went to Mudhol on his motorcycle bearing No.KA-28/A 1688 (M.0.15).
He was seen at Inspection Bungalow, Mudhol, at 8.00 G p.m. by P .W.12-Kallanagouda Patil of Utturu village. Namdeva told P.W.12 that he was returning to Bommanabudni via Halki. At 9.00 p.m. he was seen at Halki by Jnaneshwara (P.W.11) going on the motorcycle towards Bommanabundi. Thereafter nobody saw him alive. NINGAPPA YALLAPPA HOSAMANI & ORS. v. STATE 429 OF KARNATAKA AND ORS. [DR. ARIJIT PASAYAT, J.]
9. The accused Nos. 1, 2 and 4 to 7 were seen by Bommanabudni bus stand at about 8.00 p.m. of 30.1.2005 by P.W.10 Vishnu Tulasigeri. The evidence of P.W.16 Laxmappa Mullurur shows that the accused Nos.2 to 7 were seen at 11.00 p.m. on that day on the motor cycle. That witness also saw the accused Nos. 1 and 6 on another motorcycle along with other. His evidence further shows that the accused No.7 was riding the motorcycle along with the accused No.2 on that motorcycle and another motorcycle was driven by the accused No.6- Hanamant Ramappa Kivudi on which the accused No.1- Ningappa Yallappa Hosamani was sitting with a gunny bag. c When he enquired from the accused No.1, about the gunny bag, the accused No.1 is stated to have replied that it contained jaggety block, which was to be given to his relative's house. It is submitted by the appellants that even if this is accepted as true, there was nothing wrong in Ningappa Yallappa Hosamani (accused no.1) taking a jaggery block to his relative's house and that cannot fasten the liability of transporting the gunny bag containing dead body.
The time on which this incident is stated to have happened is at about 11 p.m. on 30.1.2005 and later the same persons were seen near the canal with both the motorcycles. Therefore the story of gunny bag containing the jaggery block is not believable. As held by the Courts below it must have contained the dead body of Namadev. Taking into consideration this factor, we find that the prosecution has conclusively proved that the accused Nos.1, 2, 6 and 7 had disposed of the dead body of Namadev by putting it in a gunny bag and burying it at a place near the canal, which was detected in furtherance of the voluntary information furnished by accused No.1 and 2. It is also proved that the motorcycle of Namadev was drowned in the river by the accused, which was later . recovered in furtherance of the voluntary information furnished …. by accused No.6. As regards accused Nos.1 and 2, since·the dead body of Namadev was recovered in furtherance of the voluntary information furnished by them, the natural presumption, in the absence of explanation by them is that it was those two persons, who had murdered Namadev and had A buried the dead body. ., .
10. As regards recovery of the dead body is concerned, the High Court noted as follows: As regards the second ground urged by the learned counsel for the appellants, there also what has been stated is that a rumour had been spread that four persons had committed the murder of Namadeva and his dead body had been buried near the canal and later he was called on 2.3.2005 by Lokapur police. The mahazars regarding c the place of offence of murder conducted on 3.2.2005 and the place were the dead body of Namadev was recovered were conducted in the early hours of morning of 3.2.2005 and it is not unlikely that information immediately spread in the village and immediately Namadev's dead body had been placed near the place of canal. Therefore, this cannot be taken as indicating the knowledge the people about the burial of the dead b9dY even before the dead body of Namadev was detected in furtherance of the voluntary information furnished by the accused Nos.1 and 2.
For this reason, we do not accept the interpretation put forth by the learned counsel for the appellants with regard to the recovery of dead body of Namadev. The evidence of P.W.20-investigating officer shows that the accused Nos.1 and 2 were arrested on 3.2.2005 at Mahalingapura and in furtherance of the interrogation, they furnished information and police and panchas were led by the accused Nos.1 and 2 to a place near the canal. This claim of P.W.20 has been corroborated by the evidence of P.W.14-Basappa Ramappa Pujari, who says that he had accompanied the police and panchas to the place where the accused Nos.1 and 2 were taken and the accused Nos.1 and 2 showed a place as a place of burial of Namdev's body. Then, his deposition further shows th9t he and C.Ws 22, 24 and 25 were asked to dig the land and when they dug the land, they found a gunny bag. That NINGAPPA YALLAPPA HOSAMANI & ORS. v. STATE 431 OF KARNATAKA AND ORS. [DR. ARIJIT PASAYAT, J.) gunriy bag contained a dead body which was late: identified by PWs 1 and 5 as the body of Nadadev.
We have very carefully gone through the evidence of PWs 14 and 20 in this regard and find no material to disbelieve the version of PW-14 that the place was shown by A-1 and A-2 and that when the place was dug up, they found a gunny bag containing Namadev's dead body. This evidence conclusively shows that the accused Nos. 1 and 2 had buried the said gunny bag containing the dead body of Namadev and that it was detected in furtherance of the voluntary information furnished by them.
11. In State of Maharashtra vs. Suresh (2000 (1) SCC 471) it was observed as follows: "Three possibilities are there when an accused points out the place where dead body or an incriminating material was concealed without setting that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the t~ird is that he would have been told by another person that it was concealed there. But if the accused declines t6 tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who car offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."
12. Above being the position, we find no merit in these appeals which are accordingly dismissed. c R.P. Appeals dismissed.