Bangalore District Court
The State Of Karnataka vs Ravikumar on 11 March, 2020
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 10th day of March 2020
PRESENT
************
Sri B. B. Jakati, B.A., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
S.C.No.95/2016
COMPLAINANT: The State of Karnataka,
By K.P.Agrahara Police Station,
Bangalore.
(Represented by Learned Public
Prosecutor, City Civil Court
Complex, Bengaluru)
-Vs-
ACCUSED Ravikumar,
S/o late Somanna,
Aged about 36 years,
R/at Annanagar Cross
Behind Shanimahathma Temple,
Doddagajanoor Road,
Sathyamangala Taluk,
Eroad District,
Tamil Nadu.
(Rep.by Sri H.V.S., Advocate)
1. Date of Commission : 15.08.2015
of Offence
2. Date of Report : 15.08.2015
of Offence
SC.No.95/2016
2
3. Status of the accused : Accused is in J.C
4. Name of the complainant : Sri.Manjunath
5. Date of Commencement :
08.11.2016
of evidence
6. Date of Closing of :
20.01.2020
Evidence
7. Offence complained of : Section 302 of I.P.C.
8. Opinion of the Judge : Accused is held guilty for
the offence punishable
under Section 302 of IPC
JUDGMENT
This case is arising out of charge sheet laid by Police- Inspector of K.P.Agrahara Police Station, Bengaluru against the accused for the offence punishable under Section 302 of I.P.C.
2. The facts in brief of the case of the prosecution is that, Smt.Rathnamma was the permanent resident of Talakadu. She was given in marriage to Suresh, resident of Ullamballi village, of Malavalli Taluk. She was earlier residing with her husband. Two children by name Shantharaju and Chaithra born to her. The accused is the SC.No.95/2016 3 husband of Chaithra. Because of difference of opinion between Rathnamma and her husband, Rathnamma shifted to Bangalore for her livelihood. She was residing in rented house at No.13/27, 5th main, 6th Cross, K.P.Agrahara owned by Shivamallaiah. Earlier along with Rathnamma Shantharaju, Chaithra and accused were residing in rented house at Bengaluru. Rathnamma was working in Garments. The accused - S.Ravikumar was habitually drunkard and he was quarreling with his wife, mother-in-law and all the family members. Because of this reason, Chaithra went to the native of the accused and she was residing in that place along with the accused.
3. It is the allegation of the prosecution that, on 14.08.2015 Rathnamma alone was residing in her rented house at Bengaluru. On that date accused came to the house of Rathnamma at about 8.30 p.m. Rathnamma called her relative Manjunath, s/o late Kempa Arasaiah to her house and informed that accused was quarrelling with her. Therefore Manjunath advised the accused and went to his SC.No.95/2016 4 house which is situated at Bangalore. At about 9.30 p.m., again Rathnamma called Manjunath over phone on the ground that accused is quarreling. Therefore Manjunath once again went to the house of Rathnamma and as per request made by Rathnamma he stayed in the house of Rathnamma on that night. At about 1.30 a.m., on 15.08.2015 the accused knocked the door of house of Rathnamma, she opened the door and accused entered the house and slept with Manjunath. Manjunath was intending to go to his village and therefore he left the house of Rathnamma at about 5.00 a.m., on 15.08.2015 by informing the fact to Rathnamma. At about 5.45 a.m., Manjunath called Rathnamma over phone as he was suspicious on the accused and Rathnamma did not pick up the call. Therefore from the bus stop Manjunath returned to the house of Rathnamma and at that time accused was passing in the gate in hurried manner. Even he was not talked with Manjunath and went away. When Manjunath went to the house of Rathnamma, he found the lock put to the house and through window he saw things scattered on the floor.
SC.No.95/2016 5 Then he called the neighbours and entered into the house and saw falling of Rathnamma in pool of blood. She sustained head injury and throat cut injury and due to such injuries, she died on the spot. Manjunath immediately went to the police station on 15.08.2015 at about 8.30 a.m., and filed his first information. The Police registered the crime against the accused for the offence under Section 302 of IPC and launched the investigation. During the investigation, it was found that the accused has committed murder of Rathnamma, as she was not tolerating the harassment given by the accused to herself and also Chaithra. Hence this charge sheet.
4. The accused was arrested on 31.08.2015 and he was produced before the committal Magistrate during the crime stage. After filing the charge sheet, the learned Magistrate committed the case for trial to the Court of Sessions as the offence Under Section 302 of IPC is exclusively triable by Court of Sessions. The accused is represented by legal practitioner since beginning. From 31.08.2015 till today the accused is in judicial custody.
SC.No.95/2016 6
5. After hearing both sides, the charge was framed against accused for the offence under Section 302 of IPC. The accused pleaded not guilty and claims to be tried.
6. In order to establish the guilt of the accused, the prosecution has examined 15 witnesses as P.W.1 to P.W.15 and got marked documents at Ex.P.1 to P.17 along with Material Objects at M.O.1 to M.O.11. The accused was examined under Section 313 of Cr.P.C. The accused denied the incriminating evidence appearing against him.
7. It is pertinent to note that after hearing the parties, the judgment of conviction and order of sentence was passed against the accused on 05.04.2018 and 09.04.2018. Such judgment of conviction and order of sentence was challenged by the accused by filing Crl.Appeal No.1028/2018. The Hon'ble High Court allowed the Criminal Appeal and set aside the judgment of conviction and order of sentence passed by this Court. The Hon'ble High Court has remanded the matter with a direction that the accused has to file application for recall of P.W.2, 8, 10, 11 and 13.
SC.No.95/2016 7 Accordingly the accused filed application which was allowed and the above said witnesses were recalled and their cross- examination was recorded. Now the matter is to be decided afresh.
8. The learned Public Prosecutor has argued that though there is no eye witness to the incident, the evidence of P.W.10- Manjunath, P.W.8- Ramegowda and P.W.11- Smt.Lakshmamma are sufficient to hold that accused was present in the house of Rathnamma when the death occurred and there is sufficient link to establish that accused has caused the murder of Rathnamma. He has argued that the relationship between the accused and deceased has been spoken by Pws.1, 12 to 14 and 8 to 10 and the fact that Rathnamma was residing in rented house has also been spoken by those witnesses. P.W.1, P.W.10 and Pws.12 to 14 have stated the motive of accused to commit murder of Rathnamma and there is sufficient material on records to show that death of Rathnamma is culpable homicide amounting to murder. On these grounds, he prayed to convict the accused.
SC.No.95/2016 8
9. The learned counsel for the accused has argued that, there are no eye witnesses to prove the murder of Smt. Rathnamma by the accused. The prosecution intending to prove the guilt of the accused based on his motive, last seen theory and recovery of M.O.10 and 11. The PW.1, 10 and 13 have stated that accused was quarrelling with his wife and alos Smt. Rathnamma and he had given life threat to Smt. Rathnamma prior to her death. But there are material omissions and contradiction in the evidence of PW.1, 10 and 13, which creates doubt and therefore, their evidence is not sufficient to prove the motive of accused to commit murder of Smt. Rathnamma. He has further argued that to prove last seen theory, the prosecution has strongly relied upon the evidence of PW.8 and PW.10. The accused cross examined both witnesses after remand and in the cross examination the PW.8 has admitted that he has not seen the accused in the building where Smt. Rathnamma was residing on the previous night of death of Smt. Rathnamma. Therefore, evidence of PW.8 is not available for the prosecution to prove last seen theory. In the evidence of SC.No.95/2016 9 PW.10, there are material contradictions and omissions. The police initially suspected the PW.10 and the Police detained the PW.10 in the Police Station till 6.00 P.M. on 15.08.2015. When the PW.10 himself was detained by the Police, his evidence that he saw the deceased with accused in her house just prior to death of Rathnamma cannot be believed. The learned counsel for the defence further argued that the panch witnesses to recovery of MO.10 and 11 have not supported the case of the prosecution. Therefore the prosecution has not proved the recovery panchanama. He has further argued that the valuables of Smt. Rathnamma, mobile of Smt. Rathnamma, accused and PW.10 are material in the case and such objects have not been seized by the Investigating Officer. There is lacuna on the part of the Investigating Officer. There is no evidence on record that bloodstain found on stone and knife recovered in the case is of 'B' Group and the blood group of Smt. Rathnamma is also 'B' Group. Therefore recovery of MO.10 and 11 and FSL report is not sufficient to connect the accused to the crime of murder. On these main grounds, he prayed to acquit the SC.No.95/2016 10 accused by giving benefit of doubt. In support of his argument, he relied upon the decisions reported in (2015) 12 SCC 644, 2018(2) KCCR 1305(DB), 2013(3) KCCR 2014 (DB), 2006 AIR SCW 6197 and 2013 AIR SCW 2179.
10. Having regard to the submission made by both the parties and the evidence on record, the following points arise for my consideration:
1. Is the death of Smt.Rathnamma on 15.08.2015 was homicidal?
2. Has the prosecution proved that the accused has caused the death of Rathnamma?
3. Whether the act of the accused in causing the death of Rathnamma is culpable homicide amounting to murder or not amounting to murder?
4. What Order?
11. My findings to the above points are as under:-
POINT No.1 & 2 :- In the Affirmative POINT No.3 :- The act of the accused in causing the death of Rathnamma is culpable homicide amounting to murder POINT No.4 :- As per final order SC.No.95/2016 11 for the following:-
REASONS
12. POINT NOs.1 & 2 :- Before going to the allegations made against the accused, it is necessary to appreciate the evidence of witnesses relating to relationship of accused and the deceased- Rathnamma. The prosecution has alleged that, the accused is the husband of Chaithra and Chaithra is the daughter of deceased- Rathnamma. This relationship has not been denied by the accused during the course of evidence. However, P.W.1 Chaithra who is the wife of accused and daughter of deceased has stated that accused is her husband and Rathnamma is her mother. P.W.12- Sreenivas Raju is the relative of Rathnamma. P.W.13- Suresh @ Mahalingaswamy is the husband of Rathnamma, P.W.14 - Chandrashekar Murthy is the brother of P.W.13, P.W.10 - Manjunath is the distant relative of Rathnamma and P.W.8-Ramegowda is the neighbour of Rathnamma. All these witnesses have categorically stated that Chaithra is the daughter of Rathnamma and Suresh, the accused is the husband of Chaithra. These statements have SC.No.95/2016 12 not been denied by the accused. Therefore based on the statements of all these witnesses, I hold that the prosecution has established that the accused is son-in-law of the deceased Rathnamma.
13. During the course of evidence, the accused has disputed residence of Rathnamma in rented house in K.P.Agrahara and therefore whether on the date of alleged incident, Rathnamma was residing in the house of Shivamallaiah is the material fact to be proved by the prosecution. In order to prove such fact, the prosecution has relied upon the evidence of P.W.3 / Shivamallaiah and he has categorically stated that he is the owner of house No.13/27, situated at K.P.Agrahara, Bengaluru city and in that house Rathnamma was residing as a tenant in the year 2015. He has also stated that in the rented house itself Rathnamma died and this fact has came to his knowledge through the police. He has stated that, there is a distance of 100 feet between the house where he was residing and the rented house of Rathnamma. In order to disbelieve his statement nothing has been elicited by the defence.
SC.No.95/2016 13
14. P.W.1 Chaithra who is the daughter of Smt.Rathnamma, PWs.4 and 8 who are the neighbours of Rathnamma, P.W.10 who is the relative of Rathnamma, PWs.12 to 14, who are the close relatives of Rathnamma have categorically stated that Rathnamma was residing in the rented house owned by Shivamallaiah (P.W.3) when she was murdered. They have also stated that Rathnamma was working in a Garment prior to her death at Bengaluru. The statements made by above said witnesses are consistent with each other. Therefore mere denial of the accused that Rathnamma was not residing in a rented house of P.W.3 is not sufficient to disbelieve the evidence of relatives of Rathnamma including the landlord of Rathnamma. Thus, I hold that evidence of Pws.1, 3, 4, 8, 10 and 12 to 14, is sufficient to hold that Rathnamma was residing in the house No.13/27 situated at 5th main, 6th cross, K.P.Agrahara, Bengaluru as on the date of alleged incident.
15. Ex.P.2 is the Panchanama of the scene of offence drawn by investigating officer / P.W.15- Sri.M.H.Umesh. In SC.No.95/2016 14 this panchanama, the scene of offence has been shown inside the house of Rathnamma bearing No.13/27. Ex.P.7 is the sketch prepared by B.B.M.P authority. In this sketch, the scene of offence has been shown in house No.13/27 in the 1st floor situated at 5th main, 6th cross, K.P.Agrahara, Bengaluru. P.W.2 has been examined to prove Ex.P.2. The PW.2 has stated that Police called him to the spot where there was a murder on 15.08.2015 at 11.00 A.M. He has stated that he found stone, mat, pillow and saris fallen in the house. He has also stated that there were blood-stains on stone, mat and pillow. He has identified MO.1 to 3. The defence has cross examined PW.2 after remand. In the cross-examination, the PW.2 has admitted that he has not seen MO.1 to 4 before seeing them in the Court. He has admitted that he put his signature on Ex.P.2 in the Police Station and Criminal Case was registered against him in K.P. Agrahara Police Station. He has also admitted that the police took many signatures from him. He has admitted that he deposed as per the instruction given by the police when his examination-in-chief was recorded.
SC.No.95/2016 15
16. The examination-in-chief of PW.2 was recorded on 06.02.2017. His cross-examination was recorded on 19.06.2019. Earlier the judgment was passed convicting the accused and later on the matter is remanded. After remand, the accused cross-examined the PW.2. In the cross- examination, the PW.2 has totally given go-bye to his statements made in examination-in-chief. On perusal of statements made in examination-in-chief and cross- examination, it is very clear that accused won over PW.2. Hence, the PW.2 denied his statements made in examination-in-chief. The Investigating Officer spoken about drawing of panchanama at Ex.P.2 and recovery of MO.1 to 4 from the spot. Such evidence of Investigating Officer is sufficient for the proof of scene of offence and recovery of MO.1 to 4 even though PW.2 not supported the case of prosecution in the cross-examination.
17. P.W.6 Sri. Muniyappa is the Assistant Engineer of B.B.M.P, who has stated that as per request made by the investigating officer, he visited the scene of offence and SC.No.95/2016 16 drawn the sketch produced at Ex.P.7. It has been suggested to P.W.6 that, without visiting to the spot he has drawn the sketch and such suggestion has been denied by P.W.6. Therefore nothing has been elicited from the mouth of P.W.6 to discard his evidence about his visit to draw the sketch of the scene of offence.
18. P.W.10 - Manjunath is one of the witness to Ex.P.2 and he has stated that police came to the spot when he was present and drawn the panchanama at Ex.P.2. Even he has spoken about seizure of mat, blood stained pillow, stone used for commission of offence and sample blood. P.W.15 has also spoken about drawing of Ex.P.2 and seizure of M.Os.1 to 4. Another panch witness to Ex.P.2 has not been examined. The prosecution has categorically stated that scene of offence is in house No.13/27 and accordingly evidence has been let in by the prosecution in the form of Pws.1, 6 and 15. It is not the case of the defence that incident was not occurred in house No.13/27. Therefore the evidence of Pws.1, 6 and 15 is sufficient to prove the SC.No.95/2016 17 panchanama at Ex.P.2 and seizure of M.Os.1 to 4 from the spot. Accordingly, I hold that prosecution has established the scene of offence shown in Ex.P.2 and Ex.P.7.
19. Now important point to be decided is whether death of Rathnamma is culpable homicide and if Yes, whether the accused has committed the murder of Rathnamma. In order to decide this important fact, the evidence of Pws.1, 3 to 5, 7, 8, 10, 12 to 15 is material.
20. P.W.10 Manjunath is the star witness of the prosecution. He has stated that he is the relative of Rathnamma. This statement of Manjunath has been admitted by the daughter, husband and another relative of Rathnamma. The accused in his defence has suggested to P.W.1 that, Rathnamma had illicit relationship with Manjunath. Such suggestion has been denied by P.W.1 and other relative of Rathnamma. By this defence, the accused also admitted that P.W.10 was having acquaintance with deceased Rathnamma prior to her death and he was oftenly visiting to the house of Rathnamma. Therefore the evidence SC.No.95/2016 18 of P.W.10 that he went to the house of deceased on 14.08.2015 and stayed in the house till 5 a.m., on 15.08.2015 is probable. P.W.10 has stated that on 14.8.2015 Rathnamma called him at about 8.30 p.m., over a phone and asked to bring Rs.2,000/-. Therefore he went to the house of Rathnamma and paid Rs.2,000/- and returned to his house. He states on the very day at about 9.30 p.m., again Rathnamma called him over a phone and told that accused came to her house and he is giving threat to her life. Therefore he went to the house of Rathnamma at about 9.45 p.m., on 14.8.2015. The fact that, P.W.10 was residing nearby the house of Rathnamma which has been spoken by P.W.10 has not been denied by the accused. Even the other witnesses have stated that Manjunath was residing in Bengaluru City. Therefore the possibility of calling Manjunath by Rathnamma in night is seems to be probable. Therefore the evidence of P.W.10 that he went twice to the house of Rathnamma on 14.08.2015 at about 8.30 p.m., and 9.45 p.m., is established and accordingly it is accepted.
SC.No.95/2016 19
21. P.W.10 has stated that he went to the house of Rathnamma at 9.45 p.m., Rathnamma told him that he has to stay in her house in the night. Therefore he slept in the house of Rathnamma. According to him at 1.30 a.m., on 15.08.2015 accused knocked the door of house of Rathnamma, Rathnamma opened the door, accused entered into the house and slept by the side of Manjunath. P.W.10 states at about 5.00 a.m., on 15.8.2015 he went to satellite bus stop in order to go to his village - Talakadu by informing it to Rathnamma. He states that within 20 minutes after leaving the house of Rathnamma, he called Rathnamma over phone, phone was ringing but it was not picked up by Rathnamma. Therefore he rushed to the house of Rathnamma at about 5.45 a.m. He states that when he reached the house of Rathnamma, he saw the accused who was proceeding from the house with hand bag in hurried manner and even he started to fled away after noticing P.W.10. He states that he saw the lock of house of Rathnamma and through window he saw the clothes which were scattered in the house and house was not opened.
SC.No.95/2016 20 According to him neighbors assembled near the house of Rathnamma and thereafter all the neighbors including P.W.10 opened the house of Rathnamma and saw the dead body of Rathnamma including M.Os.1 to 4. He states that Rathnamma sustained head injury and cut injury over her throat. He has also stated that he has informed this fact to Shivamallaiah, Srinivas and then he went to police station and informed the incident.
22. In the cross-examination, the PW.10 has admitted that after filing first information, the police detained him in the station till 6.00 P.M. on 15.08.2015. In Ex.P.2 the Investigating Officer has stated that PW.10 was present in the house of Smt. Rathnamma at the time of drawing panchanama. The panchanama was drawn between 11.00 A.M. and 12.00 P.M. on 15.08.2015. The PW.10 in his examination-in-chief has stated that after filing of the first information the police came to the house of Smt. Rathnamma and drawn the panchanama at Ex.P.2. Therefore there is some contradiction in the evidence of SC.No.95/2016 21 PW.10 and Investigating Officer / PW.15 in respect of presence of PW.10 on the spot when Ex.P.2 was drawn. But P.W.2 in his examination supported the statement of P.W.15. Later on P.W.2 not supported the defence. Why he has not supported the defence has been discussed while appreciating the evidence of P.W.2. Therefore, the admission of P.W.10 that he was in the Police Station after filing first information till 6.00 P.M. on 15.08.2015 not a ground to discard his entire evidence.
23. In the cross-examination the P.W.10 has stated that totally 2-3 times he stayed in the house of Smt. Rathnamma whole night. He has admitted that Smt. Rathnamma never visited to his house and even not stayed in his house. He has admitted that his wife and children never visited the house of Smt. Rathnamma and his wife was knowing his stay in the house of Smt. Rathnamma in single occasion. He has not informed his stay in the house of Smt. Rathnamma in other two occasions. He has admitted that on 14.08.2015 he did not inform his wife about his stay in the house of Smt. Rathnamma. These SC.No.95/2016 22 statements of P.W.10 indicate that he was occasionally visiting to the house of Smt. Rathnamma and even he was staying in her house by informing or by not informing such fact to his wife. By these statements of P.W.10 the accused intending to show that there was illicit relationship of P.W.10 with Smt. Rathnamma. Such defence has been directly put to P.W.1 and direct question has not been put to P.W.10. If really there was illicit relationship between Smt. Rathnamma and P.W.10, the accused should have suggested such fact to P.W.10 in the cross-examination. After cross-examination of P.W.1 the accused himself realized that there was no such illicit relationship and therefore no suggestion was put to P.W.10.
24. The P.W.1 is the daughter and P.W.13 is the husband of Smt. Rathnamma. They have categorically stated that there is no illicit relationship between Smt. Rathnamma and P.W.10. The P.W.1 and 13 are the best persons to speak about such relationship. Therefore the defence of the accused that because of illicit relationship with Smt. Rathnamma, the P.W.10 deposed falsely to SC.No.95/2016 23 escape from the clutches of the law cannot be accepted. If really P.W.10 had such relationship with Smt. Rathnamma, he would not have supported the case of the prosecution. Excluding the statements referred above in the cross- examination of P.W.10 which are highlighted by defence, there are no other statements which materially contradicts the statement of P.W.10 given before the Investigating Officer or in the examination-in-chief. The evidence of P.W.10 is found natural. Such evidence is not impeached by the defence in any manner.
25. P.W.8 has stated that he was residing in the house of Shivamallaiah in the 2nd floor as a tenant. Rathnamma was residing in the 1 st floor of same house as a tenant. He saw visit of P.W.10 Manjunath to the house of Rathnamma oftenly. Along with Rathnamma, the accused and his wife were residing. He states that on 14.08.2015 at about 10.30 p.m., when he went to bathroom situated on the 3rd floor, he saw the accused who was sitting in a corner. He noticed that accused was in drunken condition. He SC.No.95/2016 24 questioned the accused and accused told him that as he was consumed alcohol, Rathnamma not allowing to enter into the house. P.W.8 states that on 15.08.2015 at about 5.45 a.m., he was coming down from 2nd floor to ground floor in order to go to Mandya and at that time he saw the accused in the ground floor near main gate. He states that accused was holding hand bag. According to him, Manjunath / P.W.10 came opposite to him and went to the house of Rathnamma in hurried manner. He states that when he passed at about 20 feet, Manjunath came down and asked him about the accused. At that time he came to know that house of Rathnamma was locked and some body has done something to Rathnamma. He states that at about 10.30 a.m., he came to know that accused has committed murder of Rathnamma. Shivamallaiah told this fact to him.
26. The P.W.8 examined on 04.04.2017. He was not cross examined by the accused. The accused was convicted in the present case on 05.04.2018 which was challenged and after remand, the P.W.8 is called for cross-examination. His cross-examination was recorded on 03.07.2019. So, SC.No.95/2016 25 there is a gap of more than two years between examination- in-chief and cross-examination. In the background of these facts, the statement made by P.W.8 in the cross-examination is to be appreciated.
27. P.W.8 in the cross-examination has admitted that on 14.08.2015, 15.08.2015 and 16.08.2015 he was not in his rented house. He has admitted that he came to know the murder of Smt. Rathnamma, when he was in his native place / Mandya. He has admitted that he never seen the accused. These statements of P.W.8 are totally contrary to the statements made in examination-in-chief. Therefore, the prosecution further cross-examined this witness. In the cross-examination the P.W.8 has stated that he has made false statements in his examination-in-chief. Then prosecution asked him why he made false statement in the examination-in-chief and for that question the P.W.8 was not in a position to answer properly. The court has seen the demeanor of P.W.8 at the time of cross-examination. The court after appreciating the statements made by P.W.8 in the examination-in-chief and also in the cross-examination, SC.No.95/2016 26 found that P.W.8 is won over by the accused during intermediate period from 04.04.2017 to 03.07.2019.
28. In this context, it is profitable to refer the decision of the Hon'ble Supreme Court in the matter of Ramesh and Others V/s. State of Haryana wherein it is held as under:
"We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the Court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It SC.No.95/2016 27 is also possible that witnesses are corrupted with monetary considerations.
In some of the judgments in past few years, this Court has commented upon such peculiar behaviour of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar[7], this Court observed as under:
"31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power."
Likewise, in Zahira Habibullah v. State of Gujarat[8], this Court highlighted the problem with following observations: "40. Witnesses, SC.No.95/2016 28 as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control, to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State representing by their presenting agencies do not suffer... there comes the need for protecting the witnesses.
SC.No.95/2016 29 Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery.
29. Further, the Hon'ble Supreme Court in the matter of Khuji @ Surendra Tiwari V/s. State of Madhya Pradesh (1991 AIR 1853) held as under:
The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
30. Again the Hon'ble Supreme Court In the case of Veer Singh and others V/s. Sate of U.P. held as under:
15. Hazoor Singh has been examined as PW 5 and in his examination-in- chief he has stated that on the occurrence night he heard SC.No.95/2016 30 the noise of firing coupled with screaming cries from the house of Shisha Singh and Mohar Singh and he went to the house of Jassa Singh and both of them went to the house of Gurdip Singh who accompanied them by taking gun and torch and when they went near the house of Shisha Singh they saw several men and he could not identify any of them and Harbans Kaur met them there and told them that Kartar Singh and other assailants have attacked them. At this point of time he was declared hostile by the prosecution and in the cross-
examination he stated that Gurdip Singh had lodged the complaint about the occurrence in the Police Station and when Harbans Kaur narrated the occurrence, he was also present at the place and on the request of Harbans Kaur he went to the tubewell and found Shisha Singh and Mohar Singh lying dead and he informed Harbans Kaur about the same and she became unconscious. It is settled law that the testimony of the hostile witness need not be discarded in toto and that portion of testimony in the chief-examination which supports the prosecution case can be taken for consideration. In the present case, in the SC.No.95/2016 31 examination-in-chief itself PW 5 Hazoor Singh has admitted about his going to -the place of occurrence along with Gurdip Singh and Jaswant Singh on hearing the noise of firing and cries emanating from the house of Shisha Singh and Mohar Singh and the narration of the occurrence by Harbans Kaur to them which led to lodging of the complaint. The above testimony of PW 5 lends credence to the testimony of PW 4.
31. It is observed by the court that the accused has induced the P.W.8 and 2 to resile from their earlier statements made in examination-in-chief. If such methods are allowed to happen, then it is very difficult to prove the guilt of the accused in heinous crime of murder. Therefore, I hold that even though the P.W.8 not supported the case of the prosecution by giving admission in cross-examination, such admissions shall not be considered and his statements made in the examination-in-chief is to be believed. Accordingly, the statements made by P.W.8 in the examination-in-chief which are referred above are believed.
SC.No.95/2016 32 Such evidence of P.W.8 corroborates the statement of P.W.10.
32. P.W.11 -Smt.Lakshmamma who is the neighbour of Rathnamma has stated that, her house is situated at a distance of 20 feet from the house of Rathnamma. She saw the accused and Chaithra in the house of Rathnamma. She has stated that public gathered in front of house of Rathnamma and therefore she went to her house and came to know that accused has committed murder of Rathnamma.
33. The P.W.11 in the cross-examination has admitted that through Police she came to know that accused committed murder of Smt. Rathnamma. Therefore this admission of P.W.11 indicates that she is not an eye witness and even she has not seen the accused with deceased on 14.08.2015 or 15.08.2015. But the statement of P.W.1 made in the examination-in-chief that she saw the accused in the house of Smt. Rathnamma and Chaitra is wife of accused are not denied and to that extent the evidence of P.W.11 is acceptable and accordingly it is believed.
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34. P.W.1-Smt.Chaithra, in her examination-in-chief has stated that when she was in her village P.W.3/ Shivamallaiah told over phone that there was a murder of Rathnamma and therefore she rushed to the house of Rathnamma. By that time body was taken to Victoria hospital and she went to Victoria hospital. In the hospital she saw the dead body. She saw the cut throat injury and also head injury on the dead body. P.W.3 has stated that, Rathnamma died in rented house. P.W.4 in her examination- in-chief has stated that, she went to the house of Rathnamma after hearing the message of death. She saw the body of Rathnamma in the house and she has witnessed the cut throat injury on the dead body of Rathnamma. Pws.12 to 14 have stated that after hearing the message of death of Rathnamma at Bengaluru, they went to the house of Rathnamma. P.W.12 has seen the dead body in the house of Rathnamma including the injuries on her head and also throat. Pws.13 and 14 have stated that they went to Victoria hospital and seen the dead body. They have also seen the wounds sustained by Rathnamma.
SC.No.95/2016 34
35. P.W.5 - Krishna is one of the panch witness to inquest at Ex.P.5. He is resident of Chowdarapalya, Bengaluru and not related to either deceased or accused. He has stated that police called him to the house where the dead body was fallen. He has stated that he saw the dead body including the stone at M.O.1 which was blood stained. This statement made by P.W.5 indicate that, police called him to the house of Rathnamma at the time of conducting inquest at Ex.P.5. This statement of P.W.5 has not been discredited.
36. P.W.7 - Dr.S.Venkata Raghava is the Medical Officer who has conducted Post Mortem of Rathnamma. He has spoken about three injuries found on the head of Rathnamma which were lacerated wounds. He has also stated that there were external cut throat injury and multiple superficial incised wound on the neck of Rathnamma. He has stated that, because of cut throat injury Rathnamma died. The Post Mortem report is at Ex.P.P.8. The accused has denied the post mortem SC.No.95/2016 35 conducted by P.W.7 and the witness has reiterated the fact of conducting post mortem. The evidence of P.W.7 is consistent with the post mortem report at Ex.P.8.
37. P.W.15 -Sri.Umesh, Investigating Officer has stated that on 15.08.2015 he received first information from P.W.10 Manjunath at about 8.30 a.m., and registered the FIR at Ex.P.P.13. He went to the spot and spot has been shown by P.W.10. In the spot he saw the dead body of Rathnamma and drawn the inquest at Ex.P.5. He has also drawn the panchanama at Ex.P.2. He has also stated about the injuries found on the dead body of Rathnamma shown in Ex.P.5.
38. The evidence of witnesses narrated above is sufficient to hold that, there was a death of Rathnamma after 5 a.m., and before 5.45 a.m., on 15.08.2015 in house No.13/27, 5th main, 6th cross, K.P.Agrahara, Bengaluru. Her death was because of head injury and also cut throat injury. There were no other reasons for the death of Rathnamma. So this evidence on record which is not seriously disputed SC.No.95/2016 36 by the accused is sufficient to hold that there is a homicidal death of Rathnamma. Accordingly, I hold that the death of Rathnamma is culpable homicide.
MOTIVE
39. In order to connect death of Rathnamma to the accused, the prosecution has explained the motive of the accused through P.W.1, P.W.10 and Pws.12 to 14. P.W.1 who is the wife of accused has stated that, herself and her husband resided in the house of Rathnamma at Bengaluru for about one year. During that period, the accused was habitually drinking alcohol, assaulting her and even abusing her in filthy language. He was taking gold and cash from the house of Rathnamma and whenever Rathnamma questioned about the said act of the accused, accused was giving life threat to Rathnamma. She states that because of quarrel daily, she left the house of her mother and went to Talavadi which is the native of accused. She states that, even after shifting to Talavadi, the accused was drinking alcohol and beating her. This statement of P.W.1 has been denied by the accused in the cross-examination. Then also SC.No.95/2016 37 P.W.1 has reiterated the harassment given by the accused to herself and also her mother.
40. P.W.10 in his examination-in-chief has stated that accused and Chaithra were residing with Rathnamma. The accused was not going to work and on the other hand he was drinking alcohol. He has also stated that Chaithra and accused left the house of Rathnamma about one week prior to the incident and started to reside at Talavadi. He states that Chaithra was residing with Suresh, because of the harassment of accused. He has also stated that accused was quarreling with Chaithra and Rathnamma oftenly.
41. P.W.12 has stated that accused and Chaithra were residing with Rathnamma in rented house at Bengaluru and during that period, accused was consuming alcohol and quarreling with Chaithra and also Rathnamma. This fact has been came to his knowledge through the deceased Rathnamma. This statement of P.W.12 has not been challenged by the accused by way of Cross-examination.
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42. P.W.13 is none other than husband of Rathnamma. He has also stated that accused was drunkard and smoking Ganja. He was quarreling with Chaithra. The accused and Chaithra came to Gajanur village two months prior to the incident in order to settle there itself. He has also stated that accused was oftenly quarreling with Rathnamma and there was panchayath twice to settle the dispute.
43. The P.W.13 in the cross-examination denied his statement marked at Ex.D.1, which is part of Ex.P.12, wherein it has been shown that because of quarrel between himself and Smt. Rathnamma, his wife left the Village and started to reside at Bengaluru. Whether Smt. Rathnamma left the Village after quarreling with husband or with consent of husband is immaterial in the case. Therefore much importance cannot be given to statement at Ex.D.1 and that is not a material contradiction.
44. The P.W.13 in the examination-in-chief has stated that the accused was habitually drinking, smoking ganja, SC.No.95/2016 39 because of this reason there was quarrel between himself and Chaitra and therefore, accused and Chaitra were sent to Gajanuru. He has further stated that accused was oftenly quarreling with Smt. Rathnamma and two times Panchayath was convened to settle the dispute between accused and Chaitra. These facts were not narrated in the statement under Section 161 of Cr.P.C. and therefore the defence has contended that there is material omission.
45. The statement of P.W.13 recorded under Section 161 of Cr.P.C. is at Ex.P.12. In his statement the P.W.13 has stated that from Chaitra he came to know that because of daily quarrel by accused, Smt. Rathnamma sent Chaitra and accused to the Village of accused. In the statement the P.W.13 has stated that accused was under the impression that Smt. Rathnamma separated Chaitra from him and because of that reason, the accused committed murder of Smt. Rathnamma. On reading of the entire statement of P.W.13 under Section 161 of Cr.P.C. and his examination-in- chief, one thing is clear that the accused was quarreling with Chaitra and even with Smt. Rathnamma when he was SC.No.95/2016 40 residing in Bengaluru along with Smt. Rathnamma. Even he was drunkard. These facts support the case of the prosecution that accused had enmity against Smt. Rathnamma.
46. The Hon'ble Supreme Court in the decision reported in (2015) 12 SCC 644 in Para No.12 held as under:
12. In each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution.
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47. These principles clearly show that in all cases there is no necessity for the prosecution to prove motive for murder. However, if motive is proved, it adds weight and value to the evidence adduced by the prosecution. Such evidence will be a corroborative piece of evidence.
48. The statements made by Pws.1, 10, 12 and 13 clearly indicate that accused was drunkard and he stayed in the house of Rathnamma along with Chaithra prior to the incident for about one year. During that period, the accused was quarrelling with Chaithra and also Rathnamma in drunken condition. Even he was giving threat to the life of Rathnamma and Chaithra and therefore Chaithra went to the native of accused prior to the incident. There was Panchayath to advise the accused and then also the accused not mend his behaviour. These facts show that the accused was having motive to kill Rathnamma. Such fact has been proved by the prosecution through the relative of accused and deceased. No more evidence is required to prove the motive of accused. Thus, I hold that the SC.No.95/2016 42 prosecution has established the motive of accused in killing Rathnamma. This motive proved by the prosecution adds the weight and value of other evidence on record and proof of motive is one of corroborative piece of evidence.
LAST SEEN THEORY
49. P.W.10 was in the house of Rathnamma from 9.45 p.m., on 14.8.2015 till 5.00 a.m., on 15.8.2015. He has seen the presence of accused in the house of Rathnamma and he slept with the accused in the night. Therefore, P.W.10 is the best person to speak about the cause of death. P.W.8 is the neighbour of Rathnamma and he saw the accused in a drunken condition in 3rd floor of house of P.W.3 on 14.08.2015 at about 10.30 p.m. P.W.8 is not the relative of accused or deceased, even he is not the relative of P.W.10. He saw the accused in the night of 14.8.2015 and also early in the morning of 15.8.2015 near the house of Rathnamma. Therefore the evidence of P.Ws.8 and 10 clearly indicate that accused was present in the house of Rathnamma till 5.45 a.m., on 15.8.2015 and he escaped from the spot after the death of Rathnamma.
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50. Even if the evidence of P.W.8 is ignored because of his admission referred above, then also the evidence of P.W.10 which inspires confidence is sufficient for the proof that the accused was last seen with deceased in the house of Smt. Rathnamma. Therefore the presence of accused in the house of Rathnamma during the absence of P.W.10, point out the proximate cause of death of Rathnamma in the hands of accused.
CIRCUMSTANTIAL EVIDENCE
51. In Ex.P.2, it has been shown that P.W.15 has recovered stone at M.O.1 which was nearby the dead body of Rathnamma and it was blood stained. P.W.1, P.W.2 and P.W.15 have spoken about the panchanama at Ex.P.2 including seizure of stone from the spot. There is head injury to Rathnamma which has been spoken by P.W.7. Through stone the external injuries spoken by P.W.7 are possible. Therefore there is a link between head injury and material object at M.O.1.
52. Ex.P.9 is the panchanama dated 1.9.2015. Ex.P.14 is the voluntary statement of accused. P.W.9 and SC.No.95/2016 44 P.W.14 are the panch witnesses to Ex.P.9. P.W.15 has drawn the panchanama at Ex.P.9. In Ex.P.P.14 it has been shown that the accused has discovered the fact of keeping the knife used for commission of offence including his blood stained shirt. Such discovery statement in Ex.P.14 is admissible in evidence Under Section 27 of Indian Evidence Act. P.W.15 has spoken that, such discovery statement has been made by the accused. In Ex.P.9 it has been shown that the accused taken the panch witnesses and the I.O to a shed situated in 13th main road of K.P.Agrahara and shown the knife and his blood stained shirt to the I.O. Those two material objects were seized by the I.O. Those material objects are marked at M.Os.10 and 11. P.W.15 has spoken about the seizure of M.Os.10 and 11. His evidence has been denied by the accused.
53. P.W.9 has stated that his signature has been obtained in the police station on Ex.P.9. By this statement P.W.9 given go-bye to the case of the prosecution. P.W.14 who is the brother of P.W.13 has stated that police shown SC.No.95/2016 45 him M.Os.10 and 11 stating that the accused has produced those material objects. Pws.9 and 14 not supported the case of the prosecution. However P.W.14 has seen material objects M.Os.10 and 11 in the police station.
54. The Hon'ble Supreme Court in the case of Ramesh and Others V/s. State of Haryana, Surendra Tiwari V/s. State of Madhya Pradesh (1991 AIR 1853) and Veer Singh and others V/s. Sate of U.P. has held that the statements made by hostile witness can be believed to the extent which supports the case of the prosecution. Therefore, part of evidence of P.W.9 and 14 referred above which supports the statement of P.W.15 has to be believed even though they have turned hostile to the case of the prosecution.
55. The Hon'ble Supreme Court in 2013 AIR SCW 2179 in Para No.9 held on fact that the prosecution cannot rely on the evidence of discovery of weapons at the instance of accused No.1 and 2 because the panchas have turned hostile. There is no legal bar to believe the statement of hostile witness to the extent it supports the case of the SC.No.95/2016 46 prosecution. The P.W.9 and 14 in the present case have stated that they have put their signature on the panchanama at Ex.P.9, under which M.O.10 and 11 have been recovered. Their signature on the panchanama and witnessing of M.O.10 and 11 by P.W.14 supports the statement of P.W.15 / Investigating Officer.
56. The Hon'ble Supreme Court in the decision reported in 2016 Cri.L.J. 154 {Baldev Singh v/s. State of Haryana} in Para No.10 held as under:
10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.
SC.No.95/2016 47
57. The Hon'ble Supreme Court in the decision reported in AIR 2013 SC 3344 {Pramod Kumar V/S. State (Govt. of NCT of Delhi), in Para No.13 held as under:
This court after referring to State of U.P. V. Anil Singh, State (Govt. of NCT of Delhi) V. Sunil and Rai V. State of Bihar has laid down recently in Kashmiri Lal V. State of Haryana that there is no absolute command of law that the Police Officers cannot be cited as witnesses and their tesimony should always be treated with suspicion.
Ordinarily the public at large show their disinclination to come forward to be come witnesses. If the testimony of the Police Officer is found to be realiable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the Police Officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so slowly on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle SC.No.95/2016 48 that quality of the evidence weighs over the quantity of evidence.
58. The P.W.15 is the Police Officer. The statement made by P.W.15 is consistent that on the voluntary statement given by the accused, M.O.10 and 11 have been recovered. It is not the case of the accused that shirt at M.O.10 not belonged to him. There is no total bar to disbelieve the statement of Police Officer. Thus, I hold that even though the P.W.9 and 14 not fully supported the case of the prosecution, the evidence of P.W.15 which inspires confidence is sufficient for the proof of panchanama at Ex.P.9. Accordingly, I hold that the prosecution has proved seizure panchanama at Ex.P.9. P.W.15 has stated that shirt at M.O.10 was blood stained and it was sent to expert for examination along with mat, stone, pillow and clothes of Rathnamma at M.Os.1 to 9.
59. The prosecution has produced certificate of examination of M.os.1 to 11 and other article at Ex.P.16. This certificate has been issued by Assistant Director, SC.No.95/2016 49 Biology Section, Regional Forensic Science Laboratory, Mysore. Ex.P.P.15 is the requisition of P.W.14 under which articles were sent for examination. Under Ex.P.14 shirt of accused, stone found on the spot, knife shown by the accused were sent for expert opinion along with other articles. The expert has given opinion that the blood stains found on the shirt of accused tallies with the blood stains found on the stone, knife, clothes of the deceased/ Rathnamma, mat and pillow.
60. Ex.P.16 has been tendered in evidence through Investigating Officer/P.W.15. The expert who has issued Ex.P.16 has not been examined and he has not been called upon to give evidence on the certificate. Therefore, the question arises whether in the absence of evidence of expert, Ex.P.15 could be received in evidence.
61. Section 293(1) of Cr.P.C. provides that any document purporting to be a report under the hand of a Government Scientific expert to whom the Section applies, SC.No.95/2016 50 upon any matter or thing duly submitted to him for examination or analysis and reporting the course of any proceeding under the Code of Criminal Procedure may be used as evidence in any inquiry, trial or other proceedings under the Code of Criminal Procedure. Section 293(2) of Cr.P.C. provides that court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. Section 393(4) of Cr.P.C. provides list of Government Scientific experts. Section 393(4)(e) of Cr.P.C. provides that the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Laboratory is the Government Scientific expert. In the present case Ex.P.15 has been issued by the Assistant Director of Regional Forensic Scientific Laboratory, Mysuru. Therefore, such authority falls under Section 393(4)(e) of Cr.P.C. Therefore, the opinion at Ex.P.16 can be received in evidence in the present case without examination of the Author under Section 393(1) of Cr.P.C. Thus, I hold that even though the expert has not been examined, Ex.P.16 can be received in evidence.
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62. The accused has not disputed Ex.P.16 when it was tendered in evidence through P.W.15 / Investigating Officer. At the time of recording examination-in-chief of P.W.15, the counsel for the accused given consent for marking of FSL Report at Ex.P.16. Such statement is recorded in Para No.8 of examination-in-chief of P.W.15. Apart from that, the accused has not requested the court to call Assistant Director who has issued the certificate for his examination to testify his opinion. The court is of the opinion that there is no necessity to call the expert who has issued Ex.P.16. Therefore, I hold that Ex.P.16 has to be received in evidence and accordingly it is received in evidence. According to Ex.P.16 the blood-stains found on the shirt of the accused produced at M.O.10 tallied with the blood of deceased/Rathmanna. Thus, this is one of the strong circumstances brought on record to show that the accused has committed murder of Rathnamma.
63. The P.W.10 in his cross-examination has admitted that he was having mobile phone and he used such phone SC.No.95/2016 52 on the date of death of Smt. Rathnamma. He has admitted in the cross-examination that his phone was taken by the Police after filing the first information. He has also admitted that Smt. Rathnamma had mobile phone and such phone was also taken by the Police. The P.W.15 / Investigating Officer has admitted that even though he came to know that Smt. Rathnamma had mobile, he has not seized such mobile and he has not investigated as to what happened to such mobile. He has stated that he has not taken the mobile of P.W.10. He has stated that he has not secured call details of mobile of accused, Smt. Rathnamma and P.W.10.
64. The statements of P.W.10 and 15 is sufficient to hold that P.W.10 and Smt. Rathnamma had mobile and on 14.08.2015 and even on 15.08.2015 there were calls in between those mobiles. If such mobiles or call details were secured by the Investigating Officer, such material would have shown the calls, timing of the calls, and also location of the mobile of P.W.10 on the relevant date. Such materials are missing. Such materials if collected would have helped more to the case of prosecution. Only because the P.W.15 SC.No.95/2016 53 not recovered mobiles and secured call details, adverse inference cannot be drawn against the case of the prosecution.
65. The P.W.10 in his examination-in-chief has stated that when he returned to the house of Smt. Rathnamma early morning on 15.08.2015 there was a lock to the house, he saw the opened Almira, scattered clothes inside the house through window. The P.W.10 further stated that on 14.08.2015 he had given Rs.2,000/- to Smt. Rathnamma. The P.W.15 in the cross-examination has admitted that he has not investigated the matter relating to the person who opened the cupboard, who had spread the clothes in the room of Smt. Rathnamma and even he has not investigated about the cash and jewellary held by Smt. Rathnamma.
66. The panchanama at Ex.P.2 and the evidence of P.W.10 and 15 shows that Smt. Rathnamma had some jewels, cash and clothes were scattered in her room. The Investigating Officer not recovered the jewels or the cash found in the house of Smt. Rathnamma. He has not SC.No.95/2016 54 investigated as to who scattered the clothes in the room. Only because he has not conducted investigation in respect of cash, jewels of Smt. Rathnamma and scattered clothes, adverse inference cannot be drawn and such fact will not lead to create doubt in the case of the prosecution. Therefore, the lacuna on the part of Investigating Officer if any, is not a ground to acquit the accused.
67. The P.W.4, who was the neighbour of Smt. Rathnamma has stated that after hearing the news of death of Smt. Rathnamma, she went to house of Smt. Rathnamma when Police visited and saw the bleeding injury on the neck. In the cross-examination the P.W.4 has stated that she went to the house of Smt. Rathnamma at 6.00 A.M. and she went to that house along with Police. Based on this statement the learned counsel for the accused has submitted that Ex.P.10, which is first information given by P.W.10 cannot be accepted as first information and it is hit by Section 162 of Cr.P.C. In support of this contention he has relied upon the decision reported in 2013 (3) KCCR 2014 (DB). The Hon'ble High Court in Para No.18 held as under:
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18. The Apex Court in the decision relied upon by the counsel for the appellant has also held if the investigating officer deliberately does not record the FIR after receipt of information of cognizable offence - registering the complaint as FIR after reaching the spot and after due deliberation, consultation and discussion, such complaint cannot be treated as FIR, it would be only a statement made during investigation and hit by Section 162.
68. In the present case the P.W.10 has stated that first he saw the accused while escaping in hurried manner and through window he noticed scattered clothes, opened almirah and then entered into house along with neighbours and found dead body of Smt. Rathnamma inside the house. Thereafter, he went to Police Station and filed the first information at Ex.P.10. The FIR has been registered at 8.30 A.M. on 15.08.2015. The P.W.15 has stated that after registration of FIR, he rushed to the scene of offence along with P.W.10. P.W.10 or P.W.15 nowhere stated that prior to registration of FIR Police visited to the spot. Excluding P.W.4, other witnesses not stated that the Police came to the house SC.No.95/2016 56 of Smt. Rathnamma before 8.30 A.M. on 15.08.2015. In the background of these facts, whether the statement made in the cross-examination by P.W.4 alone is sufficient to infer and to believe that Police visited to the spot before 8.30 A.M. on 15.08.2015 is the matter for consideration. In my opinion having regard to the other evidence on record, the time spoken by P.W.4 in the cross-examination about visit of Police to the house of Smt. Rathnamma is not the exact time. The P.W.4 has spoken approximate time of her visit and the visit of Police to the house of Smt. Rathnamma. Therefore it cannot be held that Police visited to the house of Smt. Rathnamma prior to 8.30 A.M. on 15.08.2015. There is no evidence on record that before registration of FIR the Police visited to the spot, there was a deliberation, consultation and discussion. Hence, the decision referred above would not come to the aid of the defence. Accordingly, I hold that Ex.P.10 is not hit by Section 162 of Cr.P.C.
69. The FIR at Ex.P.13 was registered at 8.30 A.M. on 15.08.2015 and it reached the learned Magistrate at 3.45 SC.No.95/2016 57 P.M. on 15.08.2015. There is some delay in reaching of FIR to learned Magistrate. Whether such delay was caused for manipulation or creation of any records against the accused is to be seen. The learned counsel for the accused highlighted the delay in reaching the FIR to the court, but not submitted anything how such delay prejudice to the interest of the accused and whether any evidence has been created by the Investigating Officer. The FIR at Ex.P.13 is computerized document and it is not handwritten. Ex.P.13 is generated through system. Therefore, creation or anti- timing in FIR has to be overruled. Thus, I hold that only because some delay has been caused in dispatching of FIR, adverse inference cannot be drawn against the prosecution.
70. The Hon'ble Supreme Court in the decision reported in 2013 AIR SCW 2179 in Para No.9 held that suspicion, however strong, cannot take the place of proof. Clear and unimpeachable evidence is necessary to convict a person. In another decision reported in 2006 AIR SCW 6197, the Hon'ble Supreme Court has held that if there are two versions and the accused is not able to prove his defence, SC.No.95/2016 58 the prosecution case should not be accepted. The prosecution is required to establish the guilt of the accused through proper evidence.
71. In the instant case, the bloodstained shirt of accused has been seized and it was subjected to scientific examination. Human blood was found on such shirt. The accused not explained how bloodstain was found in his shirt. The accused is required to explain such fact and he is silent. In that view of the matter, inference is to be drawn against him. Further, the proof of bloodstain on the shirt of accused is not relied by the prosecution to prove entire guilt and it is one piece of evidence produced in the case. Therefore such piece of evidence is to be believed and there is no legal bar to accept such evidence while considering as to whether the accused has committed the murder.
72. The Hon'ble Supreme Court in the decision reported in (2015) 12 SCC 644 in Para No.8 has laid down principles relating to circumstantial evidence for the proof of guilt of the accused, which is extracted herein below:
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8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.
73. The same principles have been reiterated by the Hon'ble High Court of Karnataka in the decision reported in 2018(2) KCCR 1305 (DB).
74. In the present case Chaitra is the daughter of Smt. Rathnamma and accused is husband of Chaitra. Rathnamma was residing in a rented house at Bengaluru SC.No.95/2016 60 and she was working in Garment. The accused was drunkard and he was harassing Rathnamma and also Chaitra. Therefore, Rathnamma and elders advised the accused and Chaitra to leave the house of Rathnamma and therefore, the accused left house of Rathnamma and residing in his native with Chaitra before the incident. The accused had motive to commit murder of Rathnamma and therefore, he has made preparation to commit murder by coming to the house of Rathnamma on 14.08.2015 in night with drunken condition. He slept whole night in the house of Rathnamma and waited till going of Manjunath from the house of Rathnamma early in the morning at 5.00 A.M. Thereafter, the accused found near the house of deceased at about 5.45 A.M. which has been noticed by P.W.10 and P.W.8. The accused was proceeding in hurried manner near the house of Rathnamma early in the morning of 15.08.2015. There was accused and Rathnamma in the house between 5.00 A.M. to 5.45 A.M. on 15.08.2015. No other persons were present in the house of Rathnamma excluding the accused. The dead body of Rathnamma found SC.No.95/2016 61 in her house at about 5.45 A.M. and immediately the matter has been reported to Police at 8.30 A.M. All these circumstances put together indicate that the accused and accused only committed murder of Rathnamma in her house by cutting her throat with knife and throwing a stone on her head.
75. Considering these facts and evidence it is found that the prosecution has cogently and firmly established the motive of the accused and last seen theory. Even the prosecution has proved recovery of M.O.10 and 11 at the instance of accused. All the circumstances put together show definite tendency unerringly pointing towards the guilt of the accused. Even all the circumstances cumulatively form a chain so complete that there is no escape from the conclusion that within all human probability the murder was committed by the accused. It is also found that the accused is incapable of explaining of any hypothesis other than that of his guilt. Thus, I hold that the accused has committed murder of Smt.Rathnamma on 15.08.2015. Accordingly, I answer these points in the Affirmative.
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76. POINT No.3&4:- The P.W.8 found the accused in the third floor of P.W.3 in the night when the accused was in drunken condition. The P.W.10 came to know the presence of the accused in the house of Rathnamma through deceased over phone. Thereafter, P.W.10 came to the house of Rathnamma and at her request he stayed in the house on 14.08.2015 till 5.00 A.M. on 15.08.2015. At about 1.00 A.M. the accused entered in the house of Rathnamma on 15.08.2015. The accused quarreled with Rathnamma in the night on 14.08.2015, which has been spoken by P.W.8 and 10. He brought the knife and a stone to the house of Rathnamma. Those articles were kept in the house of Rathnamma without knowing to herself and even to Manjunath. The evidence further indicates that when Manjunath left the house at about 5.00 A.M., the accused attacked on Rathnamma and caused her death. The death was due to grievous head injury and also cutting of throat. All these circumstances indicate that the accused had motive to commit murder of Rathnamma. To that effect he made preparation and entered in the house of Rathnamma.
SC.No.95/2016 63 He waited till 5.00 A.M. on 15.08.2015 till going of Manjunath from the house. Thereafter, the incident took place.
77. All these circumstances make clear that the accused caused death of Rathnamma by slitting her throat and throwing stone on the head with intention to cause her murder. At least the accused had intention of causing such injury and injury is likely to cause death. Further, the accused had knowledge that he is likely to cause the death of Rathnamma when he thrown stone on the head and cut the throat with knife. Therefore, the act of accused falls within definition of Section 299 and 300 of IPC. The act of the accused in causing murder of Rathnamma does not fall in any of the exceptions provided under Section 300 of IPC. Thus, I hold that the accused has committed the offence of culpable homicide amounting to murder, which is punishable under Section 302 of IPC. Accordingly, I hold the accused guilty for the offence under Section 302 of IPC.
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78. The offence under Section 302 of IPC is punishable with death or imprisonment for life and shall also be liable to fine. Looking to this punishment, I hold that the provisions of Section 360 of Cr.P.C. and provisions of P.O. Act shall not be invoked. The accused has to be sentenced after hearing him on quantum of sentence. With these observations, I proceed to pass the following:
ORDER Accused is held guilty for the offence punishable under Section 302 of I.P.C.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 10th day of March, 2020).
(B.B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BANGALORE CITY.
SC.No.95/2016 65 11.03.2020 ORDER REGARDING SENTENCE
79. The accused is produced from JC through VC. Heard the accused, his counsel and learned in- charge PP on quantum of sentence.
80. The accused has submitted that he is innocent and not committed murder of Smt.Rathnamma and therefore, requested to acquit him. This submission can not be entertained as the Court already held that the accused has committed offence under Section 302 of IPC.
81. The murder committed in the case is not rarest of rare case in order punish the accused with death for the offence under section 302 of IPC. Therefore, I am the opinion that sentence of imprisonment for life and fine of Rs.5,000/- has to be imposed on the accused for the offence under section 302 of IPC. Accordingly, I proceed to pass the following:
SC.No.95/2016 66 ORDER Accused is sentenced to undergo imprisonment for life and shall pay fine of Rs.5,000/- for the offence under Section 302 of IPC.
Material Objects are ordered to be destroyed after the appeal period.
Issue warrant of commitment
accordingly.
Furnish copy of Judgment to the
accused free of cost.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 11th day of March, 2020).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Smt.Chaitra
P.W.2 Manjunath
P.W.3 Shivamallaiah
P.W.4 Smt.Rathnamma
P.W.5 Krishna
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P.W.6 Muniyappa
P.W.7 Dr.S.Venkat Rahava
P.W.8 Ramegowda
P.W.9 Prakash
P.W.10 Manjunath, s/o Kempa
Arasaiah
P.W.11 Smt.Lakshmamma
P.W.12 Srinivasaraju
P.W.13 Suresh @ Mahalingaswamy
P.W.14 Chandrashekar Murthy
P.W.15 M.H.Umesh
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Statement of PW-1
Ex.P.P.2 Mahazar
Ex.P.2(a) Signature of P.W.2
Ex.P.2(b) Signature of P.W.10
Ex.P.2(c) Signature of P.W.15
Ex.P.3 Statement of P.W.3
Ex.P.4 Statement of P.W.4
Ex.P.5 Inquest mahazar
Ex.P.5(a) Signature of P.W.5
Ex.P.5(b) Signature of P.W.15
Ex.P.6 Requisition for preparing
sketch
Ex.P.6(a) Signature of P.W.5
Ex.P.7 Sketch prepared by P.W.5
Ex.P.7(a) Signature of P.W.5
Ex.P.8 P.M. Report
Ex.P.8(a) Signature of P.W.7
Ex.P.9 Seizure mahazar
Ex.P.9(a) Signature of P.W.9
Ex.P.9(b) Signature of P.W.15
Ex.P.10 Complaint
Ex.P.10(a) Signature of P.W.10
Ex.P.11 Statement of P.W.11
Ex.P.12 Statement of husband of
deceased
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Ex.P.13 FIR
Ex.P.13(a) Signature of P.W.15
Ex.P.14 Voluntary statement of
accused
Ex.P.14(a) Signature of P.W.15
Ex.P.14(b) Signature of accused
Ex.P.15 Letter
Ex.P.16 FSL Report
Ex.P.17 Sample seal
3. LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
4. LIST OF DOCUMENTS EXHIBITED FOR ACCUSED :
Ex.D.1 Part of statement of PW-13/Suresh, which is in Ex.P.12.
5. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION:
M.O.1 Size stone
M.O.2 Blood stained mat
M.O.3 Blood stained pillow
M.O.4 Blood stained plastic bottle
M.O.5 Brown colour full sleeves sweater
M.O.6 Green colour blouse
M.O.7 Black colur brassieres
M.O.8 Cream colour petty coat
M.O.9 Saree
M.O.10 Shirt
M.O.11 Knife
(B.B. Jakati)
LIX Addl. C.C. & Sessions Judge,
BANGALORE CITY.
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69