Karnataka High Court
Manjunatha vs State Of Karnataka on 28 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 1526
Bench: K.N.Phaneendra, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.2123 OF 2018
BETWEEN:
MANJUNATHA
S/O. ASHWATHAPPA,
AGED ABOUT 40 YEARS,
RESIDING AT SEEGEHALLI VILLAGE,
TUBAGERE HOBLI,
DODDABALLAPURA TALUK,
BENGALURU RURAL DISTRICT.
... APPELLANT
(BY SRI M. SHASHIDHARA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY VIJAYAPURA POLICE STATION,
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
BENGALURU.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)
***
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 28-9-2018 AND ORDER
ON SENTENCE DATED 9-10-2018 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, IN S.C. NO.92 OF 2008,
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 364, 171, 302
AND 201 OF THE I.P.C.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 19-2-2019 AND COMING ON
FOR PRONOUNCEMENT THIS DAY, K. NATARAJAN, J.,
PRONOUNCED THE FOLLOWING:-
JUDGMENT
This appeal is preferred by accused No.1 against the judgment of conviction and order on sentence passed by the I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, in Sessions Case No.92 of 2008, wherein the trial Judge convicted the appellant and sentenced him to undergo rigorous imprisonment for life i.e., till his death with fine of Rs.2,00,000/- and in default of payment of fine, to suffer further three years simple imprisonment for the offence punishable under Section 302 of the Indian Penal Code (for short, 'the I.P.C.'), he 3 was sentenced to undergo imprisonment for seven years with fine of Rs.5,000/- and in default of payment of fine, to suffer further one year simple imprisonment for the offence punishable under Section 201 of the I.P.C., he was sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs.5,000/- and in default of payment of fine, to suffer further one year simple imprisonment for the offence punishable under Section 364 of the I.P.C. and he was also sentenced to undergo rigorous imprisonment for a period of three months with fine of Rs.1,000/- and in default of payment of fine, to suffer further one month simple imprisonment for the offence punishable under Section 171 of the I.P.C. These sentences were ordered to run concurrently with the sentences imposed on him in Sessions Case No.171 of 1999.
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2. We have heard the learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State.
3. The ranks of the parties before the trial Court are retained for the sake of convenience.
4. Before adverting to the arguments addressed by the learned counsel, it is worth to mention the brief facts of the prosecution case before the trial Court, which is hereunder;
PW.1-Munikrishnappa filed a report-Ex.P1 to the Vijayapura Police Station on 25-10-2007 stating that he is having three children. The first daughter-Parvathamma is given in marriage to the accused-Manjunatha, second daughter-Ansuyamma is given in marriage to Narasimhamurthy and residing along with him and his Son-Somashekar (hereinafter referred to as the deceased) working in Zodiac Garments Factory near Bagalur Cross. 5 The accused was in jail serving the sentence in a murder case, wherein he has committed the murder of his own son. In the said case, the complainant, his daughter as well as his son had given evidence against the accused. Thereby, the accused was convicted and sentenced to undergo imprisonment for life. Thereafter, the accused started nourishing enmity and used to declare that he will destroy the entire generation of the complainant. It is alleged that, the accused was released on parole for three months. During his parole, i.e. on 24-10-2007 at about 8:00 p.m., one person by name, Manju called him over phone and informed that he is the Conductor of Maruthi bus and his son-Somashekar was taken by the Police in connection with the murder case by accused No.1 and they got down at Avathi bus stand. PW.1 immediately contacted his son-in-law, i.e. the accused by phone. The accused, in turn, informed that he has already gone back to jail. The deceased did not come to the house on the said night and on the next day morning, somebody informed 6 over phone that a dead body without head was lying near the railway track at Avathi Village. Then, he along with his companion visited the spot and found the dead body, which belongs to his son and identified the same with the help of the tattoo of Shivalinga on his hand. He suspected the accused as he was nourishing enmity and used to declare that he will destroy the entire generation of the complainant. PW.1 filed a complaint-Ex.P1 before the Police suspecting the accused.
5. Upon receiving the complaint, the Police registered a case in Crime No.147 of 2007 for the offences punishable under Sections 302 and 201 of the I.P.C. Then, they shifted the dead body to the hospital for Post-Mortem examination and started investigation and also obtained body warrant of the accused through the Court. During interrogation, the accused gave voluntary statement by confessing the crime that he has thrown the dead body near the railway track, head of the deceased in 7 an open well and the weapon in an open water-tank. Then, the accused led the Investigating Officer and panch witnesses and pointed out the place, where he had thrown the weapon, utensils, i.e. tiffin box, tiffin carrier bag, etc. and the head of the deceased into an open well. The same was recovered by the Police under the panchanama at the instance of the accused and he has been produced before the Court. After the investigation, the Police have filed charge-sheet against accused Nos.1 to 3. Accused Nos.2 and 3 are the sons of elder sister of PW.1. Later, the charges were framed, the accused denied the charges. Hence, they were put on trial. The prosecution, in all, examined 23 witnesses as PW.1 to PW.23 and got marked 40 documents as Ex.P1 to Ex.P40 and also got marked 23 material objects as MO.1 to MO.23. During cross- examination, the accused got marked Exs.D1 to D3. After completion of the trial, the accused were examined under Section 313 of the Code of Criminal Procedure. The 8 case of the accused was of total denial and not entered into any defence.
6. After hearing the arguments, the learned trial Judge acquitted accused Nos.2 and 3 for the charges leveled against them. However, the trial Court found guilty of accused No.1, who is the present appellant and sentenced to undergo imprisonment, as stated supra.
7. Learned counsel for the appellant has contended that recovery of the head or skull of the deceased by the Police through voluntary statement of the accused though it was identified by the witnesses, but the same was not sent to the F.S.L. for superimposition to confirm the said head belonged to the deceased and even motive for the offence was not proved beyond reasonable doubt. As per the evidence of the mother of the deceased, the accused and his wife-Parvathamma were in good terms prior to the incident. Even the prosecution has failed to prove the circumstance of last seen theory as Maruthi bus 9 Conductor turned hostile and not supported the case of the prosecution. The learned counsel for the appellant has also argued that the trial Court while passing the sentence could have imposed only imprisonment for life and not till his death and in support of his argument, he also relied upon the judgment of the Kerala High Court. Therefore, he prayed for allowing the appeal and to set aside the judgment of conviction and order on sentence passed by the trial Court.
8. On the other hand, the learned Additional State Public Prosecutor has contended that on the voluntary statement of the accused, articles belonged to the deceased and the head of the deceased were seized and videographed in the presence of the witnesses, Police personnel and the accused. A detailed panchanama were drawn in every spot of recovery, i.e. recovery of knife, articles belonged to the deceased and head of the deceased which was thrown into the well and it is not the case of 10 the accused that head or skull does not belong to the deceased and it was not seriously disputed. The weapon used by the accused was recovered and was sent to the opinion of the Doctor, which was proved by the prosecution. The last seen theory was also proved through the evidence of PW.9, who supported the case. Though Maruthi bus Conductor has turned hostile, but other witnesses have witnessed the recovery and the prosecution is able to prove the said circumstances. Therefore, he contended that the prosecution has proved the case against the accused beyond reasonable doubt. Hence, he prayed for dismissal of the appeal.
9. After hearing the arguments of the learned counsel, it is necessary to have a cursory look at the evidence of the prosecution adduced before the trial Court;
9.1 PW.1-Munikrishna, who is the complainant and father of the deceased, has given evidence in support of complaint given by him in the Police Station as per Ex.P1. 11 He has spoken about the motive aspect, the commission of murder by the accused of his own son suspecting the fidelity of his wife-Parvathamma, who is the first daughter of PW.1. He also stated that in the said murder case, his daughter, his son and himself gave evidence against the accused in the Court. Based upon their evidence, the accused was convicted and serving the sentence in jail. In this regard, the accused was nourishing enmity and used to tell that he will destroy the entire generation of the complainant. He also stated that he received information on the date of the offence, through a Conductor, that his son was moving with Police personnel in connection with the case of accused No.1 and later, his son was found dead. After identifying the dead body, he has suspected that accused Nos.1 to 3 colluded together and committed the murder of his son. He has identified the dead body of his son, clothes, tiffin box, chain belongs to his son before the Court. Though he has admitted in the cross- examination that on the night, after receipt of the 12 information from the bus Conductor, he tried to contact his son through mobile phone, but it was not reachable and on the same night, he went to Chikkajala Police Station for enquiry, but he has not lodged the complaint. Though he further admits that he does not remember the mobile phone number of his son, later he requested Narasimhamurthy and other known people to contact the deceased through mobile phone, but he was unable to contact. The said fact was not informed by him in the First Information Report given to the Police. On the next day morning, he was able to contact the accused through mobile phone, at that time, the accused told that he has already returned back to the jail. Though improvements were made by PW.1 in the examination-in-chief, than his First Information Report given to the Police, but by way of improvement, he has not given any new facts, but he has clearly elaborated the details of the fact or information which he has stated in his complaint. Therefore, merely because some improvements have been made while giving 13 evidence in detail that cannot be considered as improvement in the complaint. PW.1 also admitted that whenever the accused was released on parole, he used to visit his house to contact his daughter PW.13-wife of the accused. He also admitted that Police also tried to implicate another son-in-law-Narasimhamurthy in this case, but later he was made as one of the witnesses. These facts give additional weightage to the case of the prosecution. There is nothing elicited to disbelieve the evidence of this witness in the cross-examination made by the learned counsel for accused No.1. Accused Nos.2 and 3 are the sons of elder sister of PW.1 by name Pillamma. PW.1 has deposed that 10 guntas of land was granted by the Government to him and he has sold it to third party without giving any share to the mother of accused Nos.2 and 3. Therefore, there was enmity, between him and the family of accused Nos.2 and 3. It is clear from the evidence of this witness that he got information through bus Conductor and then tried to 14 trace his son in neighbouring Police Station as he came to know that some Police Constable took his son. On the next date, he found the dead body of the deceased. Thereafter, he lodged the complaint. He identified material objects belonging to the deceased, i.e. shoes and clothes of the deceased, which was seized by the Police. Therefore, the evidence of PW.1 was not impeached by the learned counsel for the accused in the cross-examination to disbelieve the evidence in respect of missing and later, finding of the dead body. There is motive for commission of offence as the accused was sent to jail due to evidence given by this witness in the murder case of his own son. Therefore, evidence of this witness is trustworthy, credible and acceptable to prove the case of the prosecution.
9.2 PW.2-Patalappa is a spot panch witness. He has deposed that the Police visited the spot and prepared panchanama as per Ex.P2. He also stated that PW.1 identified the dead body of his son. Chappal and shoe 15 were also lying on the spot, which were identified by PW.1 that they belongs to his son. He also identified the said material as MO.1-one pair of shoe and MO.2-one chappal. He identified three photographs marked as Ex.P5 stating that said photos were taken while conducting mahazar. During cross-examination, this witness says that he cannot say the date and month of the panchanama, which were prepared by the Police. He also says, panchanama was prepared in his presence, but this witness speaks about lying of the dead body on the spot, he went there with a curiosity to see the dead body, at that time, the Police obtained his signature on panchanama. He also denied the suggestions that the material objects were not seized in his presence. He also denied the suggestions that the photographs were not taken on the spot. Except this suggestion, nothing has been elicited by the learned counsel for the accused. Tracing the dead body near the railway track at Avathi without head was not in dispute. 16
9.3 PW.3-Nagaraju is also a panch witness for recovery of the head belonging to the deceased. He has spoken that the Police called him to the Police Station. He also reveals that the accused informed the Police and showed the places, where he had thrown the head of the deceased. The accused took them to the place, where he had thrown the dead body of the deceased. The Police prepared the panchanama and videographed the same. Thereafter, the accused took them towards the well and shown the head was thrown into the well. Then, the Police brought ropes and Srinivas went down inside the well tying the rope and sent the head in a plastic bucket. The head was already decomposed. PW.1 identified the head of the deceased, but the head was unidentifiable. The head is recovered at the instance of the accused. The Police seized the head under the panchanama, and then the accused took the Police towards another abandoned well and informed them that, he has thrown the clothes, chain, bag and other belongings of the 17 deceased. Again, PW.5-Srinivas got down to the well and brought the belongings of the deceased and the same was identified by the accused and the witnesses. The recovery was videographed by the Police. The accused took them to stone built tank (open tank), took out the knife from inside the tank and produced before the Police. The same was seized by the Police under the panchanama. This witness also identified Ex.P4 as panchanama and his signature. He also identified the skull (head) of the deceased-MO.5. Clothes of the deceased-MOs.6 to 8, tiffin boxes-MO.9 and 10, tiffin carrier bag-MO.11, handcuffs-MO.12, iron chain-MO.13, one black thread and waist thread-MO.14, knife-MO.15 and khaki dress-MO.16. He says, Police seized all the material and affixed his signature. The video cassettes is marked as MO.17. During cross-examination, except suggestions, nothing has been elicited. In fact, the cross-examination was done looking to the videograph in the Court. This witness has admitted that, he being Village Panchayat Member used to visit the Police Station 18 in respect of settling the minor dispute in the Police Station. Merely because this witness was a Village Panchayat Member and used to visit the Police Station frequently that itself is not a ground to disbelieve his evidence. This witness has spoken regarding recovery of material objects by the Police and cross-examination was done by looking to the scenes in the videograph. On the other hand, the evidence of this witness trustworthy and acceptable one.
9.4 PW.4-Bhatyappa is a recovery panch witness. This witness also supports the case of the prosecution. The accused took the Police and the witnesses to Bullahalli Village to Rajanna's land and took out the clothes from the bush and produced. The Police seized the same under Ex.P6. The accused has also produced his helmet to the Police and the same was seized by them. Accused also informed the Police that he has kept jerkin near Koramangala Jail compound. The accused took 19 them to the said place and produced the jerkin, which was also seized under panchanama as per Ex.P7 and the Police videograph the same. This witness identified the clothes, helmet and jerkin of the accused as MOs.18 to 22 and his signatures on Exs.P6 and P7. Cross-examination was done by the learned counsel for the accused looking to the scenes in the videograph. There is nothing to disbelieve the evidence of PW.4 in respect of recovery of clothes, helmet and jerkin of the accused.
9.5 PW.5-Srinivasa is the person, who got down into the well with the help of rope, at the request of the Police, took the head and other belongings of the deceased. He also identifies the skull (head) as MO.5 and other articles as MOs.6 to 13. He also identifies himself in the videograph. In the cross-examination, he has admitted that nobody was ready to get down into the well, therefore, the Police engaged him on the payment of wages and the Police provided only alcohol and not paid any 20 amount. However, Ex.D3-statement is no helpful to the accused since the accused himself led the Police and panchas to near the well. As nobody was ready to get inside the well for the recovery of head, this witness was engaged by the Police and he sent the head in the plastic bucket from the well. There is nothing to disbelieve the evidence of this witness. This witness has helped the Police in recovery of the head and other belongings of the deceased from the well.
9.6 PW.6-Shanthamurthy, a photographer, who has shot all the sequences in respect of the recovery of the head and other belongings at the instance of the Police. He has spoken about the voluntary statement made by the accused before the Police. He also identified the pachanama and spoken about the videograph in converting to DVD and handed over the same to the Police. He has identified the C.D. as MO.17. He also identified 53 photographs taken in the C.D. as per MO.23. 21 This witness has given evidence in so many cases and that itself is not a ground to reject his evidence. He has also stated that the Police have not requested him for providing memory card, but he is ready to give the same. The videograph has been played in the Court and he has given details in respect of the recovery. There is nothing to disbelieve the evidence of this witness. Learned counsel for the accused contended that though the video C.D. has been marked as MO.17 and entire cross-examination was done by learned counsel for the accused by looking to the video C.D. in the Court, but disputed that there is no Certificate under Section 65B of the Evidence Act produced by the prosecution. It is also argued that PW.6 has taken out the pictures in a memory card, but he has misplaced it and again, he has stated that a small cassette is with him, etc. but this witness though given the evidence in respect of shooting of voluntary statement and recovery of head of the deceased, articles of the deceased, knife and clothes of the accused, but he has not given any 22 Certificate as required under Section 65B(4) of the Evidence Act. It is also relied by learned counsel for the accused that Certificate is necessary for admitting the electronic documents. Admittedly, MO.17 is an electronic device though prosecution chosen to examine PW.6- videographer, but failed to obtain a Certificate from him. Learned counsel for the accused relied upon the judgment of the Hon'ble Apex Court in the case of ANVAR P.V. v. P.K. BASHEER AND OTHERS reported in 2014 10 SCC 473, wherein it has held that C.D., V.C.D., chips, etc. shall be accompanied by Certificate in terms of Section 65B of the Evidence Act. He contented that as C.D., V.C.D. are secondary evidence pertaining to electronic record without Certificate of PW.6 and primary record, i.e. memory card is not produced by PW.6, hence, MO.17 is not admissible evidence. Learned counsel also relied upon the judgment of the Hon'ble Supreme Court in the case HARPAL SINGH @ CHHOTA v. STATE OF PUNJAB reported in 2016 E-JURIS(SC) (11) 75, wherein it has 23 clarified the legal position in respect of Certificate by the person, who is in possession of the device. Further, in the case of SHAFHI MOHAMMAD v. STATE OF HIMACHAL PRADESH reported in (2018) 2 SCC 801, the Hon'ble Supreme Court has held as under:
"Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies."
In this case, PW.6, who is in possession of video camera, has stated in his evidence that he is having a memory card, but he says that he has misplaced the same in his studio. He has further stated that he can produce the Certificate as required under Section 65B of the 24 Evidence Act. Therefore, MO.17 is not admissible evidence in absence of any Certificate. MO.17 is without compliance of Section 65B(4) of the Evidence Act and the same is not admissible evidence. However, in respect of seizing MO.17, Police prepared panchanama as per Ex.P17(a) that was not seriously disputed by the learned counsel for the accused and most of the cross- examination done by the learned counsel for the accused by looking to the video C.D. In the primary document, shooting of the entire episode was not produced by PW.6. Therefore, C.D. is secondary evidence without Certificate and MO.17 cannot be admissible evidence. The trial Court has not considered the objections raised by the learned counsel for the accused during cross-examination of PW.6. Even otherwise, the evidence of this witness can be accepted as a witness, who also accompanied to the Police for the purpose of recovery of head and other material objects at the instance of the accused. 25
9.7 PW.7-Murali is the inquest panch witness. He has turned hostile and not supported the case of prosecution.
9.8 PW.8-Gowramma is the mother of the deceased. She has given evidence in support of the prosecution case on par with the evidence of her husband-PW.1. She has spoken about the motive aspect that the accused threatened to destroy her family members as they gave evidence against the accused in the murder case. During cross-examination of this witness, nothing has been elicited by the learned counsel for the accused, except that she does not know the phone number of the accused and also her husband. However, this witness has admitted that whenever the accused was released on parole, he used to take PW.13 along with him. This witness also stated that she has not given statement before the Police in respect of the accused, who used to threaten that he will kill her son. Except this, nothing has been elicited in 26 respect of missing of the deceased, motive for commission of offence and tracing of dead body of the deceased. Therefore, evidence of this witness is sufficient to accept the contention of the prosecution about the motive factor; missing of the deceased and later, tracing of the dead body of the deceased.
9.9 PW.9-Chandrashekhara deposes that on the day of incident, when he was standing near the chats (eatables) shop and eating bhelpuri, at that time, the accused and two other persons came in the Police uniform and took the deceased in a bus. He also identifies accused Nos.1 to 3, who took the deceased. Thereafter, he came to know about the murder of the deceased.
9.10 PW.10-Narasimhamurthy is a tenant of PW.1 and on the date of incident, PW.1 said to have requested him to telephone to the deceased and he came to know the said telephone was switched off. Then, at the request of PW.1, he telephoned accused No.1, but he also did not 27 receive the phone and by next day morning around 6:20 a.m., PW.1 requested him to again telephone accused No.1, then the accused picked up the call and on enquiry, the accused informed that he was in jail. Immediately, the accused disconnected the phone. Thereafter, he found that the dead body was traced near the railway track. During the cross-examination, nothing has been elicited to disbelieve the evidence of this witness. However, this witness stated that he does not remember, whether he has given statement to the Police stating that when he tried to contact accused No.1, the phone was ringing and thereafter, it was informed the phone is not reachable. Merely because this witness is unable to remember whether the phone ranged or it was switched off that itself is not a ground to disbelieve his evidence. PW.1 contacted accused No.1 over phone and in turn, accused No.1 told that he was in jail and the same is not in dispute. 28
The learned counsel for the appellant has also contended that the Investigating Officer has not collected the call list of the cell phone of the deceased and also the call list of the accused and PW.10 to confirm whether PW.1 telephoned to the accused through the cell phone of PW.10. Therefore, it is contended that the evidence of PW.10 cannot be acceptable. No doubt, PW.20 has stated that as per the evidence of PW.1, PW.1 has contacted PW.10 to telephone the accused and the accused informed that he was in jail and prior to that, his cell phone was not reachable. PW.20 clarified that he was unable to trace the cell phone of the deceased and PW.10 has not given any cell phone number. Merely because the call list was not produced by the Investigating Officer that cannot be a ground to reject the evidence of this witness, since this witness has stated that on the request of PW.1, PW.10 tried to contact the deceased, but his cell phone was switched off and on next day, PW.1 has contacted the accused from the cell phone of PW.10 and the accused 29 informed that he is in jail. Subsequently, PW.1 came to know the dead body of his son was traced near Avathi railway track. Except the evidence that the accused told PW.1 that he was in jail, which is not disputed fact that he was returned back to jail, after completion of parole. Therefore, the call list of the cell phone of PW.10 and the accused is not necessary or relevant to this case.
9.11 PW.11-Krishnappa is the co-brother of PW.1 and also inquest panch witness. He has supported the case of the prosecution in respect of tracing the dead body. However, he has partly turned hostile and in the cross-examination, though he has admitted that the accused was in jail and was released on parole, but he has denied the commission of murder by the accused. Since this witness is not an eyewitness, Ex.P9-statement is not useful to the case of the prosecution. However, his evidence is acceptable in respect of recovery of the dead body near the railway track.
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9.12 PW.12-S.K. Nagaraju is one of the relatives of the accused as well as deceased. He has spoken that the accused was in jail in a murder case and came out on parole, met him and told that he is going to join his wife after convincing his father-in-law. Thereafter, he has consulted PW.1 and requested to send the daughter of PW.1 to lead marital life with the accused. Except this information, this witness has turned hostile in respect of the statement-Ex.P10 that the accused committed murder of the deceased.
9.13 PW.13-Parvathamma, who is the wife of the accused as well the elder sister of the deceased, has given evidence in support of the prosecution case on par with her father PW.1. During cross-examination, she has admitted that whenever accused comes out on parole, he used to take her to his native place Seegehalli and bring her back to her parental house. Even this witness admits that two days prior to the incident, the accused took her 31 to his native place and also took her out for shopping and purchased clothes for her and brought her back to her parental house. Further, she has stated that after purchasing clothes, the accused spent two days with her and after gaining her confidence, the accused enquired about the work place of the deceased and thereafter, he also followed to work place and got the information. Remaining cross-examination is pertaining to their residential place as the accused used to demand her to stay in his native place, but she has demanded to have a separate rent house. Further, she also speaks about the motive, missing of her brother and tracing of the dead body of the deceased. Even herself and PW.1 have categorically stated that accused wanted her back, however, advised that he should be released from jail, then only, she will join the accused. Though there is some improvements made by her in her evidence, but those improvements are only elaborating the fact of the case and not a new facts introduced by her. Therefore, 32 the evidence of this witness also supports the case of the prosecution in respect of motive for commission of the offence or grudge of the accused against her parents' family.
9.14 PW.14-A.N. Krishnan is the Manager of the Garments Factory, where the deceased was employed. He has deposed that the deceased attended the job on 24-10-2007 and left the Factory at 6:03 p.m. He has given the Certificate as per Ex.P11. This witness is only a formal witness.
9.15 PW.15-Srinivas, retired Jail Superintendent worked in the Open Air Jail, Koramangala, Devanahalli Taluk, Bengaluru, has spoken about accused No.1, who has been convicted in the murder case and the accused was shifted from Central Jail to Open Air Jail in the year 2005. The accused was released on parole on 26-7-2007 for about 90 days and on 25-10-2007 at 8:50 a.m., the accused returned to jail. Accordingly, he gave report as 33 per Ex.P12. In the cross-examination, this witness says the concerned Police came to the Open Air Jail on 25-10-2007 at 10:45 a.m. for enquiring the accused.
9.16 PW.16-Puttabasaiah, retired Deputy Director of RFSL, Mangaluru, who examined the blood stained soil, sample soil (non-blood) and gave report as per Ex.P13 and identified the same as MOs.3 and 4.
9.17 PW.17-S.M. Gavankar, Deputy Director of the F.S.L., Gulbarga, who examined article Nos.1 and 3 to 7, i.e. pant, shirt, underwear, piece of cloth, knife and gave report as per Ex.P.15 stating that they were stained with blood and identified the same as MOs.1, 2, 6 to 8, 15 and 16.
9.18 PW.18-Dr. Sathish, who conducted the Post- Mortem examination on the dead body of deceased- Somashekar and gave the report as per Ex.P18. Thereafter, he also received the knife from the Police and 34 after examination, he gave report as per Ex.P19 and according to his evidence, MO.15-knife could cause the injuries mentioned in the Post-Mortem examination report.
9.19 PW.19-Gopinath is the Inspector of Police, who received the complaint, registered the F.I.R. and secured the witnesses at the request of the Circle Inspector of Police and then, he has assisted the investigation.
9.20 PW.20-Venugopal is the Investigating Officer, who submitted the charge-sheet, after detailed investigation.
9.21 PW.21-V.G. Nayak, Deputy Director of the F.S.L., Bengaluru, examined viscera of the deceased in four bottles and issued Ex.P33 report stating that residues of volatile poisons, pesticides, barbiturates, benzodiazepine group of drugs, toxic metals ions and anions were not detected.
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9.22 PW.22-N. Krishnappa is the Assistant Engineer, P.W.D, who prepared the sketch as per Ex.P37.
9.23 PW.23-Manjunathareddy, Maruthi bus Conductor, who has last seen the deceased in the company of the accused on the date of the incident, but he has turned hostile and not supported the case of the prosecution.
10. On over all perusal of the evidence of the prosecution witnesses, the prosecution case rests upon the circumstantial evidence. To prove the guilt of the accused, the prosecution relied upon following circumstances;
(i) Homicidal death of the deceased and recovery of dead body;
(ii) Motive;
(iii) Last seen theory, i.e. the deceased was seen in the company of the accused, and 36
(iv) Arrest of the accused, recovery of the head of the deceased and articles belonging to the deceased.
It is well settled by the Hon'ble Supreme Court in catena of decisions that how to deal in respect of circumstantial evidence and appreciation of evidence of the prosecution witnesses. In this regard, the learned counsel for the appellant has relied upon the judgments in the case of THE STATE OF KARNATAKA V. KANTHARAJ reported in LAW (KAR) 2016 3 25, in the case of TOMASO BRUNO v. STATE OF U.P reported in LAWS (SC) 2015 1 57, in the case of H. UMESH @ UMAKANTHA RAO v. STATE OF KARNATAKA reported in LAWS (KAR) 1990 3 36, in the case of TARSEEM KUMAR v. DELHI ADMINISTRATION reported in 1994 Supp (3) SCC 367.
On perusal of the above said judgments in the case of circumstantial evidence, the Hon'ble Supreme Court has categorically stated that, the Court must cautiously 37 examine and record the verdict of guilt or giving benefit of doubt. Further, in the circumstances where conclusion of guilt is fully proved, such circumstances may be conclusive in nature. Moreover, all the circumstances should be proved and there should not be a gap left in the chain of evidence. Further, proved circumstances must be consistent only with hypothesis of the guilt of the accused and in consistent with his/her innocence. By keeping in mind the principles laid down by the Hon'ble Supreme Court, we are required to examine the circumstances relied by the prosecution in the case as under:
10(i) The first circumstance relied upon by the prosecution is homicidal death and recovery of dead body of the deceased. It is not in dispute that the deceased met homicidal death. Dead body of the deceased was recovered near Avathi railway track without head as per the evidence of PW.1-father of the deceased, who gave 38 complaint before the Police and given evidence before the Court that on 24-10-2007, the deceased went to attend his job and in the evening, he had received a telephone call from one Maruthi bus Conductor-PW.23 that his son is going in the bus along with the Police in connection with the case pertaining to accused No.1. Immediately, PW.1 tried to contact the deceased, but he was unable to contact him as the cell phone was switched off. Later, by next date, he has contacted accused No.1 through mobile phone, where accused No.1 told that he has gone back to the jail. Thereafter, he came to know that a dead body was found near Avathi railway track. He and his family members went to the spot and saw the dead body without head and he has identified the same as of his son by looking to the tattoo mark of Shivalinga in the hand of the deceased. Thereafter, he lodged a complaint to the Police. The Police registered a case, sent the dead body to the Post-Mortem examination. PW.18-Doctor, who conducted Post-Mortem examination, has given evidence and Post- 39 Mortem examination report as per Ex.P18 that the deceased died homicidal death. Dead body was found without head and the head was separated from the dead body and there is no much cross-examination in respect of the death of the deceased by homicidal death. Even PW.21-the Deputy Director of F.S.L. also examined the viscera of the deceased and he has not found any poisonous substance in viscera of the deceased. Therefore, the evidence of PWs.1, 18, 20 and 21 corroborate with each other in respect of the deceased met with homicidal death. Thereby, the prosecution established the homicidal death of the deceased.
In respect of recovery of dead body, PW.1-father of the deceased saw the dead body near Avathi railway track and after identification of the dead body, gave a complaint before the Police. Police after registering the case, came to the spot, prepared spot panchanama in the presence of panchas PW.2. PWs.19, 20 and 21, PW.13-sister of the 40 deceased, PW.8-mother of the deceased given evidence regarding the dead body of the deceased and also spoken regarding missing of the deceased on the previous date. Missing of the deceased and recovery of dead body of the deceased is also not seriously disputed by the accused and it is not the case of the accused that dead body does not belong to the deceased. Thereby, the prosecution is successful in proving the circumstance of homicidal death and recovery of dead body of the deceased. During cross- examination, learned counsel for the accused contended that homicidal death was not proved by the prosecution and in support of his argument, he has relied upon the judgment in the case of BAKSHISH SINGH v. THE STATE OF PUNJAB reported in AIR 1971 SC 2016, wherein the dead body recovered by the Police on the information given by the accused on being questioned is not a conclusive circumstance, but it merely raise a strong suspicion against him. On the case on hand, head of the deceased was recovered at the instance of the accused on his 41 voluntary statement. Father of the deceased-PW.1, panch witnesses, Investigating Officer, PW.6-videographer and PW.5, who got down into the well and took out the head at the request, have given evidence. Dead body was recovered by the Police on the very next date of the incident and later, head of the deceased was recovered at the instance of the accused. Therefore, the fact in the said case is different from the case on hand. Hence, the principle laid down by the Hon'ble Apex Court will not come to the aid of the accused and it will help to the case of the prosecution.
10(ii) The second circumstance relied upon by the prosecution is motive for the offence. The prosecution relied upon the evidence of PW.1-father of the deceased, PW.8-mother of the deceased and PW.13-wife of the accused. Their evidence go to show that the accused married PW.13-Parvathamma in the year 1995. They had a daughter and a son. The accused by suspecting the 42 fidelity of his wife-PW.13, killed his own son. With regard to that, a murder case was registered against him. In the said trial, PW.1, deceased Somashekar, PW.8 and PW.13 gave evidence against the accused and thereby, the accused was convicted and sentenced for life imprisonment. Thereafter, the accused started nourishing enmity against the family members of PW.1 and used to threaten that he will destroy the entire generation of PW.1. All these three witnesses have spoken about the threatening of the accused as they gave evidence against the accused in murder case of his own son. PWs.8 and 13 have admitted in the cross-examination that whenever the accused was released on parole, he used to take his wife one or two days to his Village and return back. As per the evidence of PW.13, two days prior to the incident, the accused took her along with him, purchased clothes for her and her daughter and thereafter, he had enquired about the work place of the deceased and after gaining confidence of PW.13, he gathered information of work 43 place of the deceased. On the very next day, i.e. 24-10-2007, the deceased was found missing, after returning from his job. The dead body of the deceased was found and recovered near Avathi railway track. The evidence of PWs.1, 8 and 13 clearly corroborate with each other and it is not disputed that the accused was in jail and was released on parole and went back to the jail on 25-10-2007. The evidence of PW.15-Srinivas, Retired Superintendent of Open Air Jail, Koramangala, Devanahalli Taluk, also goes to show that the accused was released on parole for ninety days and the accused came back to jail in the morning hours on 25-10-2007 at 8:50 a.m. as per Ex.P12 and the same is not in dispute.
As per the evidence of PWs.1, 8, 13 and 15 go to show that the accused was released on parole and during that time, he planned to commit the murder of the deceased in respect of previous enmity as they all gave evidence against him and he was sent to jail. It is pertinent to note that the accused was nourishing enmity with the family of 44 PW.1 and in order to get the information about the deceased, the accused took PW.13-his wife along with him and spent sometime and he has convinced his wife by taking her out for shopping and stayed along with her for one or two days. It is not in dispute that he has tried to take PW.13 and approached a common relative-PW.12 of the accused and PW.1. It is not elicited by the learned counsel for the accused that the deceased had any other enemies other than the accused. The evidence of PWs.1, 8 and 13 were not impeached by the learned counsel in the cross-examination in respect of motive aspect. Therefore, there is nothing to disbelieve their evidence and the prosecution has established the motive for commission of the offence by the accused.
10(iii) The next circumstance relied upon by the prosecution is last seen theory i.e., the deceased was seen in the company of the accused. The prosecution relied upon two witnesses, i.e. PW.9 and PW.23-Maruthi bus 45 Conductor, who have seen the deceased along with accused Nos.1 to 3 in the Police uniform, while traveling in the bus. The bus Conductor PW.23 has informed PW.1 that the deceased was taken by the Police in connection with the case belonged to accused No.1, but PW.23 turned hostile and not supported the case of the prosecution. However, PW.9-Chandrashekar gave the evidence that on the date of incident, when he was eating chats, i.e. bhelpuri, at that time, accused Nos.1 to 3 came in Police uniform and took the deceased in a bus and he also boarded the same bus and got down from the bus in his native place. As per the evidence of this witness, the deceased was continued to travel in the said bus along with the accused. He also identified accused Nos.1 to 3, who took the deceased along with them. Though lengthy cross-examination was done by learned counsel for the accused and denied the circumstances, but PW.9 categorically stated that he has seen the deceased in the company of the accused. He has intimated the same to 46 PW.1-father of the deceased, after witnessing the dead body of the deceased. However, in the cross-examination, though he has admitted that he has not informed to the Police immediately, but he has told his mother and one Narayana Reddy. He has categorically stated that when the dead body was shifted to the hospital, he has informed the same to the Police. Though lengthy cross-examination was done, but nothing has been elicited to disbelieve the version of this witness. This witness, being independent witness, is not related to PW.1 and having no enmity with the accused to falsely implicate the accused. Therefore, we hold that the prosecution has established that the deceased was seen in the company of the accused on the date of incident and thereafter, the deceased was found dead on the next date.
Once the prosecution is able to prove the deceased was seen in the company of the accused and the dead body of the deceased was found on the next date, the 47 burden of proof is shifted to the accused to explain and it is within his knowledge as per Section 106 of the Indian Evidence Act. The accused has to explain what had happened to the deceased. Non-explanation by the accused, when prosecution discharged the initial burden, the Court can draw an adverse inference against the accused that the accused himself caused the murder of the deceased. Therefore, we hold the prosecution is successful in proving the circumstances theory of last seen that the deceased was in the company of the accused.
10(iv) The last circumstance relied upon the prosecution is that recovery of the head of the deceased and other belongings of the deceased. In this regard, the evidence of PW.1, PW.3-Nagaraju-panch witness to the recovery, PWs.4, 5, 6, 13, 19 and 20 corroborate with each other. PW.19 registered the case. PW.20 took up the investigation and recorded the statement of PW.23- 48 Maruthi bus Conductor. Thereafter, he made an application to the Court to obtain Body Warrant of the accused from the Magistrate and took the custody of the accused from 5-11-2010 to 9-11-2010. He has secured the presence of panchas, complainant and recorded the voluntary statement of the accused as per Ex.P24 on 6-11-2010. In the presence of panchas and PW.1, the statements were videographed by PW.6. As per the evidence of these witnesses, the accused confessed the crime and has disclosed that he will show the place of occurrence, where he has thrown the dead body and also showed the place, where he has thrown the head of the deceased, articles belonging to the deceased and also the weapon and clothes of the accused. After recording the voluntary statement of the accused, the Police and panchas have gone along with the accused and the accused has shown the place, where the dead body of the deceased was thrown, i.e. near Avathi railway track, after committing the murder of the deceased. Then, the Police 49 prepared panchanama on the spot in the presence of panchas. Then, the accused led the Police team towards an open well and informed that, the head of the deceased was thrown in it by packing it in a plastic cover. The said well belongs of one Rama Subramanya. PW.5-Srinivas got down into the well and sent the head in the plastic bucket and when the plastic cover was opened, they found the decomposed head of the deceased, which was identified by PW.1 on the spot. The panchas-PW.3 and PW.1 have spoken about the recovery of the head under the panchanama, which was taken out with the help of PW.5, and PW.5 has also supported the case and gave evidence that he got down into the well and sent the head to the surface in a plastic bucket and the same was videographed by PW.6. MO.5 was the skull (head) of the deceased, which was produced before the Court and marked. Though learned counsel for the accused has contended that the head was not sent for superimposition or D.N.A. test, but the evidence of PW.1, PW.8, PW.13, 50 PW.3-panch witness and PW.20-Investigating Officer have clearly given evidence that the head belongs to the deceased which was recovered at the disclosure statement of the accused and is admissible under Section 27 of the Indian Evidence Act.
Though the dead body of the deceased was found just within a kilometer where the head of the deceased was recovered, there is no evidence to show that place of well was known to them, but the accused led them near to the well. Though lengthy cross-examination was done by the learned counsel for the accused to PW.5, PW.6 and also PW.20-Investigating Officer, but the entire cross- examination was done by looking to the scenes in the videograph. Looking to the scenes in the videograph and getting answers to the questions cannot be denied by the witnesses. Even the skull was not sent to F.S.L., D.N.A. test or superimposition, but the father of the deceased and the family members have clearly identified that the head 51 belonged to the deceased and it is not the case of the accused that the head was not that of the deceased. Therefore, merely because the head of the deceased was not sent for test of superimposition that itself cannot be a ground to reject the evidence of the prosecution witnesses that the dead body and head do not belong to the deceased and there is no evidence to show that the head and body belongs to someone else other than the deceased-Somashekar. Thereby, the prosecution is successful in proving that the head belongs to the deceased. The evidence of PWs.1, 3, 5, 6, 19 and 20 corroborate with each other regarding recovery of head of the deceased on the voluntary statement made by the accused.
11. The evidence of PW.20-Investigating Officer goes to show that accused again further led the Police team and PW.1 and showed another well, where the accused had thrown the clothes, tiffin box and handcuffs used by 52 him while taking the deceased under the guise of arrest by the Police. Again PWs.1, 3, 5 and 6 have clearly spoken about the seizure of articles, clothes of the deceased, tiffin box, tiffin carrier bag, handcuffs and chain as per MOs.6 to 14. Ex.P4 is continuous panchanama prepared by the Police. Thereafter, the accused had taken all the witnesses near an open water-tank, where he had thrown the knife, which was used for commission of the offence. The accused went and took out the knife and handed over the same to the Police. The same was seized by the Police in the presence of panch witnesses. MO.15 is a knife identified by PWs.1, 3, 5 and 6 and Investigating Officer. The Investigating Officer has also given evidence that at the instance of accused, khakhi dress (Police uniform) is also recovered which was used by the accused to show that he was a Police Constable. The same is marked as MO.16. It is also seen from the evidence of the Investigating Officer, PW.4 and PW.6 that the accused produced his clothes to the Police and thereafter, he took 53 them near Koramangala Open Air Jail compound and took out the jerkin, which was seized in the presence of the panchas as per Exs.P6 and P7. The clothes of the accused, helmet and jerkin are marked as MOs.18 to 22. The evidence of this witness, PWs.1, 4, and 6 corroborate with each other in respect of recovery of MO.16-khakhi dress (police uniform), which was used by the accused to show that he was a Police Constable and taken the deceased along with him.
12. Further, the evidence of Investigating Officer- PW.20, and PW.4 go to show that the accused after commission of the offence has thrown his clothes, helmet, jerkin, before going back to the jail, after completing his parole. The same was recovered under the panchanama as per Exs.P6 and 7. MOs.18 to 22 were also videographed and witnessed by PW.6. From the evidence of these witnesses, the prosecution has successfully established that the accused, after commission of the 54 offence, has thrown the head of the deceased into the well, clothes of the deceased, tiffin box and handcuffs into another well. Knife used for committing the murder of the deceased is thrown to an open water-tank and thereafter, he has thrown his clothes in other place, which were recovered by the Investigating Officer on the disclosure statement of the accused under the panchanama.
13. The Hon'ble Supreme Court in the case of VINAYAK SHIVAJIRAO POL v. STATE OF MAHARASTRA reported in AIR 1998 SC 1096, has held as under:
"12. In the present case apart from the statement of recovery there is a clinching circumstance against the appellant. That is, the head of the deceased wife was recovered from another well situated in the land of another person and the said recovery was made at the instance of the appellant. The said fact of the head being in another well was within the exclusive knowledge of the 55 appellant and if he had not committed the murder he could not have shown the well in which the head was found. The High Court was therefore perfectly justified in relying upon the statement of confession and the recovery of the head at the instance of the appellant for holding that the appellant was guilty of murder."
14. In the case of STATE OF TAMIL NADU v.
KARUPPUSWAMY reported in 1993 SCC (CRI) 123, the Supreme Court has held as under:
"Evidence Act, 1872 - S.27 - Murder and beheading - Confessional statement made by accused leading to recovery of severed head of deceased and aruval (sickle) containing human blood - Admissible under S.27 - This circumstance goes a long way to corroborate the prosecution case."
15. From the evidence of PWs.1, 3, 4 to 6, 19 and 20, the prosecution is successful in proving all the 56 circumstances against the accused to show that he was the author of the crime.
16. In view of our above findings, in respect of conviction of the appellant deserves to be upheld for the alleged offences.
17. However, in respect of the legality of imposing sentence under Section 302 of the I.P.C., i.e. imprisonment for life till his death is required to be modified as the trial Court has no power to impose such a harsh punishment. The learned counsel for the appellant has also contended that the trial Court ought to have awarded sentence only for term of life, but it has imposed the sentence to undergo imprisonment till the death of the appellant. In support of his arguments, he has relied upon the judgment in the case of STATE OF KERALA v. UNNI reported in LAWS (KER) 2012 (12) 232, wherein after recording the judgments of the Hon'ble Supreme Court and High Courts, it has held that the Sessions 57 Judge have no power to impose harsh life sentence and the Court cannot take away the power of the Government under Sections 432, 433 and 433A of the Code of Criminal Procedure.
18. Though the trial Court has rightly ordered to serve sentences to run concurrently as per the provisions of Section 427(2) of the Cr.P.C., but ought not to have ordered life sentence till the death of the appellant, as the trial Court has no power to impose such a harsh punishment. Except that, there is no illegality in the findings of the trial Court in holding that the appellant- accused was guilty for the offences punishable under Sections 302, 201, 364 and 171 of the I.P.C. Hence, we proceed to pass the following ORDER i. Accordingly, the appeal is allowed-in-part; 58 ii. The findings of the trial Court in respect of judgment of conviction and order on sentence for the offences punishable under Sections 201, 364 and 171 of the I.P.C. are hereby confirmed. However, the order on sentence for the offence punishable under Section 302 of the I.P.C. is modified, and iii. The appellant-accused is sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.2,00,000/- (Rupees two lakh only) and in default of payment of fine, he shall further undergo three months simple imprisonment for the offence punishable under Section 302 of the I.P.C.
SD/-
JUDGE SD/-
JUDGE kvk