Karnataka High Court
Naveen Kumar @ Naveen vs State Of Karnataka on 13 December, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL No.124/2022
BETWEEN:
NAVEEN KUMAR @ NAVEEN
S/O. SHIVANNA
AGED ABOUT 26 YEARS,
R/AT NELAVAGILU VILLAGE,
NANDAGUDI HOBLI,
HOSKOTE TALUK,
BANGALURU RURAL DISTRICT,
PIN - 562 122. ... APPELLANT
(BY SRI BASAVARAJU T.A., ADVOCATE)
AND:
STATE OF KARNATAKA
BY NANDAGUDI POLICE STATION,
BANGALURU RURAL DISTRICT
REPRESENTED BY
STATE PUBLIC PROSECUTOR
AT PUBLIC PROSECUTOR OFFICE,
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING, AMBEDKAR VEEDI,
AT BENGALURU - 560 001. ... RESPONDENT
(BY SRI.VIJAY KUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
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SENTENCE DATED 31.05.2011 IN S.C. NO.182/2009 PASSED BY
THE PRESIDING OFFICER, FAST TRACK COURT-V, BANGALORE
RURAL DISTRICT, BANGALORE-CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE P/U/S 302, 201 OF IPC AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21/11/2022, COMING FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, K.S. HEMALEKHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
Feeling aggrieved by the judgment convicting the accused under Sections 302 and 201 of the Indian Penal Code, 1860 ("IPC") and order of sentence to undergo life imprisonment for the offence punishable under Section 302 of IPC and to undergo three years of rigorous imprisonment for the offence punishable under Section 201 of the IPC and both the sentences to run concurrently, the accused has preferred the present appeal.
2. It is the case of the prosecution that a missing complaint was lodged by PW.2 - Manjunath stating that his mother is missing since 31.12.2008 at about 8.30 a.m. when she left her home and has not -3- returned back. The complaint states that the deceased was medium built, 75 years old lady and when she went out of the house, she was wearing black saree, gold ear studs, a finger ring, mangalasutra and bangles in all around worth of Rs.1.00 lakh. The PSI- PW.6 received the missing complaint and registered a FIR under Cr.No.2/2009, deputed the staff to trace the missing person and came to know that the accused was not found in the village from past 4 to 5 days and on enquiry, it was found that the deceased was last scene in the house of the accused. On interrogation, it was found that the accused has killed the deceased by throttling her neck for gain and has taken mangalasutra, bangles, ear studs, ring from the dead body and later on, the dead body was rolled in a bed sheet and put under the cot and later threw the body in the "well" of one Ashwathnarayana's land. On 10/01/2009, the PSI as per Ex.P-15 registered a case in Cr.No.2/2009 under Sections 302 and 201 of IPC. -4-
3. The offences were triable by the Additional District & Sessions Judge, Fast Track Court-V, Bangalore Rural District, Bangalore. The accused was in judicial custody and the charges were framed for the offences punishable under Sections 302 and 201 of the IPC. The accused pleaded not guilty and claimed to be tried.
4. In order to prove the case of the prosecution, the prosecution examined 25 witnesses and got marked 29 documents at Exs.P-1 to P-29 and the material objects were marked at MOs.1 to 14 and closed its side and the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") and the accused pleaded that he has defence to make by submitting his written statement along with the rough map and the Sessions Court tried the accused for the offences punishable under Sections 302 and 201 of the IPC. -5-
5. The Session Court framed the following points for determination:
(1) Whether the prosecution proves beyond all reasonable doubt that, on 31/12/2008 at 8.30 p.m. Sarakanuru resident deceased Akkamma went to the house of accused by wearing valuable gold ornaments, accused to gain said gold ornaments committed a murder by throttling her neck and thereby committed an offence punishable u/s. 302 of I.P.C.?
(2) Whether the prosecution proves beyond all reasonable doubt that, on the said date, time and place after committing murder the dead body tied in the bed sheet and kept below the cot on same day at 11.30 p.m. he took the dead body to well which is situated at Ashwathanarayana's land and thrown the dead body in the said well and closed the well with stone slabs and caused certain evidence to disappear with an intention of screening from legal punishment and thereby committed an offence punishable u/s 201 of 1.P.C.? -6-
6. The Sessions Court held that the prosecution has proved beyond reasonable doubt that, on 31/12/2008 at around 8.30 a.m. the deceased went to the house of accused wearing valuable gold ornaments and for gain the accused has committed the murder of the deceased by throttling her neck and committed an offence under Section 302 of the IPC and the prosecution also proved beyond reasonable doubt that the committing of the murder of deceased Akkamma and body was tied in the bed-sheet and kept below the cot and on the same night, the dead body was thrown in the "well" situated on the land of Ashwathnarayana and closed the "well" with the stone slab and in order to discard the evidence with an intention of screening from legal punishment has committed an offence under Section 201 of the IPC and the accused was convicted for the offence punishable under Sections 302 and 201 of the IPC. Being aggrieved by the charges having been proved by the prosecution for the offences punishable -7- under Sections 302 and 201 of the IPC, the present appeal is preferred.
7. Heard the learned counsel for the accused and the learned Additional Special Public Prosecutor ("Addl. SPP") for the State.
8. Contention of the learned counsel for accused:
Learned counsel for the accused would submit, i. That the circumstantial evidence as initiated by the prosecution is not been proved as the chain of circumstances do prove the guilt of the accused.
ii. That the learned Sessions Judge has not appreciated the 313(5) statement of the accused, wherein the accused has specifically stated about the dispute between the grand-sons of the deceased and the deceased Akkamma over the property and would contend that the accused has been falsely implicated by -8- P.W.1 and the police under Sections 302 and 201 of the IPC.
iii. The three circumstances i.e., the last seen theory, recovery of the dead body at the instance of the accused and the recovery of the pledged ornaments at the instance of the accused has not been made out by the prosecution and the evidence of panchas, PWs.2, 7 and 8 are totally contradictory to each other.
iv. That the evidence of PW.4, who according to the prosecution is the last scene witness cannot get the confidence of the Court for the reason that PW.4 has not stated about the seeing of the deceased at the house of the accused when the investigation was going on and it is for the first time that PW.4 has stated in his evidence about this aspect and thus would contend that the credibility of the evidence of this witness is suspicious.
v. That the evidence of PWs.1 to 3, who are the relatives of the deceased and there being no -9- eyewitness to the alleged incident the case of the prosecution has to fall or stand on its own footing.
vi. That the "well", where the body was recovered, was covered with a single stone slab weighing 150 kgs., which according to the learned counsel is impossible to be put by a single person, as during the investigation when the body was recovered, the stone slab could not be removed by a single policeman and the assistance of PW.12 was required to remove the stone slab and thus, would contend that the case of the prosecution that the deceased was murdered and put the body in the "well" by the accused single handedly cannot be believed.
vii. That the dead body recovered was in a fully decomposed state and as stated by the doctor and the postmortem report clearly show that the body is beyond recognition and the cause of death cannot be ascertained.
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Stating these grounds, the learned counsel for the accused would contend that the prosecution has failed to prove the circumstantial evidence as could lead to the initiation of proceedings against the accused and sought to allow the appeal stating that the accused has been falsely implicated in the case.
9. Contention of learned Additional SPP, Sri Vijay Kumar Majage would contend:-
i. That the missing complaint was lodged on 07/01/2009 and in the missing complaint, it is specifically stated about the clothes and ornaments worn by the deceased and as is evident from Ex.P- 13/missing complaint lodged by PW.2 the son of the deceased.
ii. That the accused has been missing from the village since 31/12/2008 and missing complaint was lodged by the son of the deceased and finally the accused was apprehended on 10/01/2009 and
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PW.6/PSI has recorded his voluntary statement at Ex.P-28.
iii. That PWs.1, 3 and 4 are the panch witnesses to Ex.P-1 inquest mahazar where the body was recovered at the instance of the accused would clearly establish the fact that the prosecution has proved beyond reasonable doubt about the involvement of the accused in the murder of the deceased. iv. That PW.25/CPI who took the investigation from PW.6 has also recorded the voluntary statement of the accused at Ex.P-29 and recovered the ornaments at the instance of the accused and an inquest mahazar at Ex.P-2, Ex.P-3 is the receipt for having pledged the ornaments with PW.8 the pawnbroker, who has also stated categorically that it is the signature of the accused which is found on Ex.P-3 and has recognized the accused.
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v. That, the evidence of PW.10 about recovery of four bangles as per MO.13 was also recovered at the instance of the accused.
vi. That as contemplated under Section 243 of the Cr.P.C. provides that the accused shall enter into the witness box to adduce his evidence, but though the accused has stated in his 313 (5) statement, about the strained relationship of the deceased with her family members and having taken a specific defence ought to have proved the same as contemplated under the Evidence Act.
vii. The ornaments and the body were recovered at the instance of the accused, non framing of charge under Section 392 is not fatal to the proceeding as the dead body has been recovered and the conduct of the accused in misleading the evidence and have left to a state where the body was recovered at the stage which was beyond recognition and thus the accused having convicted under Sections 302 and 201 of the IPC is
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justifiable and sought to confirm the judgment and order of the Sessions Court.
10. Having heard the learned counsel for the parties, the point that arises for consideration in the appeal:
"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence for the offences punishable under Sections 302 and 201 of the IPC in the peculiar facts and circumstances of the present case?"
11. We have carefully considered the submission made by the learned counsel for the parties and perused the original records.
12. The prosecution case is based on the circumstantial evidence as could be seen from the incriminating evidence of the prosecution. The following circumstances were set out by the learned Sessions Judge.
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(i) The prosecution has proved that the deceased was last seen with the accused and there is a homicidal death.
(ii) The prosecution having recovered the body and the ornaments at the instance of the accused.
(iii) Placing reliance upon the evidence of all the incriminating evidence culled out by the prosecution, the prosecution has proved beyond reasonable doubt that the accused has committed the murder of the deceased for gaining the gold ornaments and after the murder of the deceased, the dead body was thrown into the "well" and the "well" was covered with a stone slab.
(iv) That the accused caused certain evidence to disappear with the intention to screen from the legal punishment and the articles were recovered at the instance of the accused and
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hence the offences against the accused were proved.
13. In light of the said findings by the learned Sessions Judge, the aforesaid chain of circumstances is in consistence, it is necessary to refer to the evidence adduced by the prosecution. There are totally 25 witnesses examined by the prosecution.
(i) PW.1 Chandramohan is the panch witness to Exs.P-1 to 12 i.e., inquest mahazar, spot mahazar, receipt of pawn broker, seizure mahazar of MO.10 to 12, photographs of the dead body, photos of the "well". According to PW.1 who is a panch witness was called on spot at the "well" where the body was recovered at the instance of the accused and stated about the situation of the "well", width and height of the stone slab and even though he has stated that to remove the stone slab, three persons are required, but categorically has stated that one person is sufficient to move the stone
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slab. In his statement, he has stated that the police has taken statement and also taken the videography and supported the case of the prosecution.
(ii) PW.2 Manjunath who is the son of the deceased has stated about the filing of the missing complaint on 07/01/2009 and the mentioning of the description of the deceased and ornaments that was worn by the deceased on the date of the incident. PW.2 has categorically stated that the accused being brought to the police station at night on 10/01/2009 and at the instance of the accused, the body of his mother was recovered from the "well" and dead body was in a decomposed state. However, PW.2 has identified the dead body as belonging to his mother and stated regarding the missing of the gold ornaments. PW.2 stated that at the instance of the accused, the ornaments were recovered at the accused elder sister's house and the ring of his mother was pledged with
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PW.8-Devaramu, Santosh Bankers by the accused and Ex.P-3 was the pawn broker's receipt and supported the case of the prosecution.
(iii) PW.3 is one Krishnappa who is also a panch witness to the inquest mahazar and he has categorically stated that on 10/01/2009, Nandagudi Police summoned him to the police station, the accused was present at the police station and the police took P.W.3 and the accused in the jeep to the land at Sarakanur Village where the deceased was thrown in the "well" and by removing the stone slab, the body which was in decomposed state was recovered from the "well" and that the accused identified the dead body of the deceased being that of Akkamma and he identified MOs.1 to 7 and the inquest mahazar at Ex.P-1 was drawn after seizing MOs.1 to 7 and he also identified the photographs at Exs.P-5 to P-10. Ex.P-5 is the photograph of accused showing the dead body in the
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"well", recording of drawing of mahazar in his presence has been videographed and supported the case of the prosecution.
(iv) PW.4 Anand Kumar is the last scene theory witness according to the prosecution. PW.4 has stated in his evidence that on 31/12/2008 at around 8.30 a.m. while he was going to his shop, he had seen the deceased Akkamma, who was proceeding from her house and when he enquired, she told that she was going to accused's father's house and that the deceased went forward and on the next day, he came to know that the relatives and family members of the deceased Akkamma were enquiring about the deceased and later, on, he came to know on 10/01/2009 that the police have arrested the accused stating that he has killed the deceased Akkamma and thrown her in the "well".
Though he has stated in his evidence that he has not stated about the seeing of the deceased on 31/12/2008
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to their relatives or to anybody related to the deceased, he stated that the same was not informed as he was not asked about it. The evidence of PW.4 clearly shows that he saw the deceased going to the house of the accused on 31/12/2008, the same was not informed as he was not aware that the deceased Akkamma was missing thereafter. Stating this he has supported the prosecution case.
(v) PW.5 Ashwathanarayana, the owner of the land where the dead body was found, stated that the stone slab was covered on the "well". On 10/01/2009, he came to know that Akkamma was murdered and the police have recovered the dead body on the information of the accused and he has stated that the dead body was removed from the "well" with the help of PW.12 and it was in a decomposed state. He stated that he had seen her one week prior to the date of the incident. Though he had stated that the stone slab weighs
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around 50 to 60 kgs, the width of the stone slab was 2 ft. and length is 5 ft. He used to visit his land every day and he has identified the small stone slab. At around 30 ft. distance from the "well" there is house of Kondalliramanna and around 10 ft. distance from the "well" there is a snake burrow (hutha) and he went near the "well" at 9.00 a.m. and saw that the "well" was covered with stone slab and stated that he had no enmity with the accused. PW.5 has supported the case of the prosecution.
(vi) PW.6 Ramappa, PSI who had registered the FIR on the basis of the missing complaint on 07/01/2009 in Cr.No.2/2009, he deputed his staff to trace the accused as he found that the accused was missing from the past three to four days from the village and he apprehended the accused on 10/01/2009 and the accused was produced and his statement was recorded as per Ex.P15, PW.6 stated regarding
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recording of the voluntary statement and handing over charge to PW.25 the CPI for further investigation and supported the case of the prosecution.
(vii) PW.7 is one Madhusudan is a witness and he been to police station and the accused in his presence informed about the ring being pledged at Santhosh Bankers and the same was recovered under Ex.P.3 and supported the case of the prosecution.
(viii) PW.8 is Devaram, the pawn broker who deposed that on 10/01/2009, the police came along with the accused and CPI produced the receipt for having pledged the gold ring labeled as MYSS and showed the register as per Ex.P-16 and he has categorically stated about the coming of the accused to his shop stated about the pledging of the ring with PW.8 and having issued receipt at Ex.P-3. The police also asked to produce the receipt book and he has produced the same and he has identified the accused
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when he had come to his shop along with the police. PW.8 has supported the prosecution case.
(ix) PW.9 is Lakshminarayana, who is businessman selling sarees and who is the witness to the mahazar at Ex.P-17 and deposed that on 10/01/2009 he went to the police station and he has seen the accused and stated that at the instance of the accused the articles of Akkamma i.e., the bangles were recovered from the house of the accused's elder sister. PW.9 is a panch witness for recovery of articles at Ex.P-
17. He stated that the accused has opened the almirah at his sister's house wherein they found four bangles with lakshmi logo and the same was seized as per Ex.P-
17. PW.9 stood the test of cross-examination and supported the case of prosecution.
(x) PW.10 is Nagaratnamma sister of the accused who has turned hostile to Ex.P-17 in the recovery and drawing of the mahazar, wherein the
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bangles with Lakshmi logo were seized and the statement under Section 161 at Ex.P-18.
(xi) PW.11 is Rathnamma mother of the accused who has turned hostile by denying the statement recorded under Section 161 at Ex.P-19.
(xii) PW.12 is Ananda has deposed that on 10/01/2009, the police along with accused came near Ashwathnarayana's land and accused informed that he has murdered Akkamma and thrown the dead body in the "well" of Ashwathanarayana and thereafter, PW.12 and police got into the "well", removed the dead body which was wrapped in the bundle and on opening the bundle found the dead body and the accused informed that the dead body is that of Akkamma and that the accused has murdered Akkamma for the gain of golden articles worn by the deceased. PW.2 Manjunatha, the son of the deceased identified the dead body is that of
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his mother. PW.12 stood the test of the cross- examination and supported the case of the prosecution.
(xiii) PW.13 is one Ravi who has stated that on 10/01/2009 the accused was present at the "well" and on the instance of the accused, the body of Akkamma was recovered and the accused has informed about the murdering of Akkamma and throwing the dead body in the "well" and thereafter, the police called PW.12 and removed the bundle from the "well", the accused identified the dead body of the deceased in the bundle was that of Akkamma and PW.2-Manjunath, the son of the deceased also identified the dead body was that of his mother. According to PW.13, the prior to the occurrence of the incident about one and half a months, the accused had borrowed Rs.1,500/-, but had not repaid the amount inspite of repeated demand as the accused had fallen into bad vices and he stood the test of cross-examination. He has specifically stated that
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there is a motive to kill the deceased to gain the golden ornaments as he was in debt and had bad habits and supported the case of the prosecution.
(xiv) PW.14 is Dr. B.G.Srinivas who has examined the accused has issued Ex.P-20-wound certificate wherein it is mentioned about the injuries sustained by the accused and the abrasions are already healing as they appear to be six to seven days old. PW.14 has categorically stated that the wound certificate showing the injuries found at the time of examining the accused and he has issued Ex.P-20 and the injuries might have been caused due to quarrel between two persons. PW.14 has admitted that he did not show the nature of abrasion injuries might have caused if a person falls on any hard surface also.
(xv) PW.15 is one Shiva Kumar who is the Secretary of Grama Panchayat deposed that at the time of inquest he has issued the demand register extracts
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at Exs.P-21 and P-22 are not standing in the name of Shivanna son of late Erajanappa and he has admitted that the property identified was the property No.29 which is shown at Exs.P-21 and P-22.
(xvi) PW.16 is one Palani Swami, Engineer from Public Works Department, who visited the incident spot on 06/03/2009 and prepared the sketch at Ex.P-23 and his signature was at Ex.P-23(a).
(xvii) PW.17 is the Second Division Clerk who had issued the RTC.
(xviii) PW.18 Manjunath, PC taken the accused into custody from his sister's house and produced before PW.6 and PW.6 enquired him and during the enquiry, the accused has stated that on 31/12/2008, the deceased came to his house and for gain he has throttled the neck of the deceased and kept the dead body under the cot, on the very day, he took the dead
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body and threw in the "well" and PW.6 took the accuse to the "well" where the dead body was thrown and when they went near the said "well" there was foul smell and CW.31 that is PW.12 removed the stone slab which was covered over the "well" and taken out dead body from the bundle and after opening the bundle, it was found that dead body was that of a woman and the same was in a decomposed state and the accused identified the dead body was that of Akkamma and PW.2 the son of the deceased also identified the body that belongs to his mother.
(xix) PW.19 is one Dr. Geetha who has examined the dead body and issued the postmortem report and stated as per Ex.P-25 and the signature at Ex.P-25(a) opining that the cause of death could not be furnished as the body is in the advanced stage of decomposition and chemical analysis report are negative. However, she has stated regarding the soft tissue injuries cannot
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be ruled out. PW.19 has supported the case of prosecution.
(xx) PW.20 is one Channakrishnappa who is the owner of the Gokul Photo Studio in his evidence he has stated that on request of PSI, he recorded video of the place of the incident on 10/01/2009 and he along with the police and the accused went in a jeep and at the instance of the accused the body of the deceased was recovered and he has seen the said videography at the time of displaying the cassette in the laptop before the Court and the same is identified as MO.14 and the MO.14 on which the date and time of the videography was recorded and after recording the data he kept the C.D. in the safe-locker. PW.20 has clearly admitted the contents of the said documents and photos at Exs.P-5 to P-12 and supported the case of the prosecution.
(xxi) PW.21 is Lokesh- PC, who deposed that on 10/01/2009, the accused admitted before the PW.6-PSI
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that he has killed Akkamma and showed the place where the body was thrown by him and the PSI has summoned the panchas and thereafter at the instance of the accused they went to the "well" situated in Ashwathanarayana's land and the dead body was recovered and the same was identified to be that of the dead body of Akkamma in front of the CPI and thrown the dead body in the "well" and stood the test of the cross-examination.
(xxii) PW.22 is one Shaila, WPC who had carried the FIR to the Magistrate (xxiii) PW.23 is Mohankumar C.D., PC of Thyamagondlu Police Station, who deposed about the handing over the complaint to register the FIR on 10/01/2009.
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(xxiv) PW 24 is Nanjappa who has stated that he had registered the FIR on basis of the complaint of PSI and then sent to the Court on 10/01/2009.
(xxv) PW.25 is Suryanarayan Rao who is the Police Inspector who deposed that about the handing over of charge by PW.6 at 10.a.m on 10/01/2009 and he has recorded the voluntary statement of the accused at the spot as per Ex.P-29, at the instance of the accused the dead body was recovered and the bangles from the sister's house and gold ring at the pawn broker's shop, mahazars were drawn and the video graphed the scene of incident and received the PM report and FSL report and the document pertains to the place of incident and charge sheet was filed.
14. As could be seen from the evidence of prosecution witness the incriminating circumstances that led to implicate the accused are:
(a) Last scene theory
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(b) Homicidal death / motive / Recovery of the jewels at the instance of the accused
(c) Recovery of the dead body
(d) 313 and 313 (5) statement of the accused, wherein the accused pleaded alibi.
15. The entire case of the prosecution is based on the circumstantial evidence and the reference to the leading judgment of the Apex Court, in the case of Sharad Birdhichand Sarda vs. State of Maharashtra [(1984)4 SCC 116], lay down the five Golden principle it is the panchsheela which governs the case based on the circumstantial evidence. The relevant para No.153 reads as under:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence
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of the accused and must show that in all human probability the act must have been done by the accused."
16. In the said case, the prosecution witness has deposed to the effect that the material placed on record would show the incriminating evidence that lead to the prosecution of the accused under Sections 302 and 201 of the IPC.
(a) Last scene theory:
17. PW.4 is the prime witness who has stated in his evidence that when he was going to the shop at around 8.30 a.m. on 31/12/2008, the deceased Akkamma was coming from her house and when enquired, she informed that she was proceeding to Naveen Kumar's (accused) father Shivanna's house and stating so, the deceased went to the house of the accused and PW.4 went to his shop. It is his specific statement that he has seen the deceased near the
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house of the accused. Though he has stated that the same was not informed to any of the relatives of the deceased Akkamma though they were searching for the deceased till the body was recovered. However, he has mentioned the same, later and he was not sure that the said Akkamma would have been murdered in the hands of the accused and later on, when the accused was traced out on 10/01/2009, he got the memories down to his lane that on his enquiry, the deceased had stated that she was proceeding to the house of the accused- Naveen Kumar. The evidence of PW.4 though clearly shows that the police have not recorded his statement on 11/01/2009. Merely non-stating of the said fact would not be a fatal as the evidence of PW.4 clearly shows that he had no motive to give any evidence against the accused and the evidence of PW.4 clearly shows that, it is quite natural to ask a person as to where he/she is going so PW.4 asked the deceased where she was proceeding to, she answered that she is
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going to the house of Shivanna who is the father of accused. The non stating of this fact at the time of investigation would not be fatal to the prosecution as he has stood the test of the cross-examination stating that he remembers the deceased mentioning to him that she is proceeding to the house of the accused and nothing substantial is elicited by the learned counsel for the accused to disbelieve the statement of the PW 4. The last seen theory of the prosecution has been established by PW.4.
(b) Homicidal death/Motive and recovery of the jewels at the instance of the accused:
18. The motive as stated by PW.13 who in his categorical statement has deposed that one and a half months prior to the incident, the accused had taken loan of Rs.1,500/- and has not repaid the same. He has also stated about the bad habits of the accused and non-doing any job during the said period and also
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stated that the accused used to be often in alcoholic condition and he was in need of money to repay his debt and thus, PW.13 stated that this would have been one of the reasons to murder the said Akkamma. In addition to the evidence of PW.13, the recovery of the missing gold ornaments of the deceased which she was wearing, according to the complainant PW.2 at Ex.P-1 and the prosecution examined PWs.1, 2, 7, 8 and 9 who are the panch witnesses to the recovery of the gold ornaments recovered from the elder sister's house of the accused. Ex.P-3 is the receipt of the pawn broker for pledging of the finger ring and the receipt issued to that effect wherein the accused had signed and the same has been stated by PW.8 the pawn broker in his categorical statement about the pledging of the said ornaments by the accused. The recovery of mangalya chain, one pair ear stud and the pawn broker receipt in the elder sister's house of the accused as per Ex.P-2 and on the information furnished by the accused
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himself in the presence of PWs.1, 2, 7, 8 and PW.9 and all the witnesses have stood the test of cross- examination. Ex.P-16 is the original receipt book from which Ex.P-3 was issued and the same shows the signature of the accused. Hence, from the evidence of PWs.1, 2, 7, 8 and 9 the motive is established and the recovery of the gold articles belonging to Akkamma and the articles having been recovered at the instance of accused, the prosecution has proved the second circumstantial evidence regarding the motive of the accused.
(c) Recovery of the Dead Body:
19. Recovery of the dead body in the "well" on the land of Ashwathnarayana is evident by the evidence of PWs.1, 2, 7, 8 and 9. PW.2 has filed the missing complaint stating that the mother was wearing a red colour saree, blouse, one pair of ear stud, four bangles and mangalsutra worth Rs.1.00 lakh and the body of
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the deceased was recovered at the instance of the accused as has been stated categorically by the said witnesses. Exs.P-1, P2 and P-18 and Ex.P-3 the receipt of the bankers and the evidence of the said witnesses clearly shows the presence of the accused and nothing has been elicited in the cross-examination of the witnesses to disbelieve the evidence of the said witnesses. The evidence of PWs.1 to 9 and 12 to 25 clearly shows interrogation of PW.6 and PW.25 and the voluntary statement of accused was recorded at Ex.P- 15 and P-29 and the body was recovered at the instance of the accused.
20. The Apex Court in the case of Manoj Suryavanshi vs. State of Chhattisgarh [(2020)4 SCC 451] at para No.20 has held as under:
"20. Now, the next important evidence against the accused is the recovery of dead bodies which were found from the places shown by the accused after his arrest. During the course of
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the investigation, the dead bodies were four from the places shown by the accused, the places which the accused alone could have known. Therefore, there is a recovery of the dead bodies along with the school dress and bags at the instance of the accused. It has been established and proved from the disclosure memo. The disclosure memo has been exhibited. Therefore, the aforesaid circumstance definitely goes against the accused."
21. The judgment of the Apex Court would reveal that the recovery of the dead body at the instance of the accused after his arrest during the course of investigation, it has to be established and proved from the disclosure memo and therefore, the said circumstances will definitely go against the accused.
(d) 313 and 313 (5) statement of the accused
22. In order to prove the 313 statement of the accused, the defence set out by the accused the
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relevant portion of the statement under Section 313(5) of the accused is as under:
"7) , zÀÄ d£À
½ , °è ! "# $ %AqÀÄ
& ' # . )* + , ªÀÄUÀ£ÁzÀ £ÁUÀgÁdÄ
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., / . "#0 . 1 )* 2 34 ,% 5
6 72 $ 8 , 4 , 5 9 :; )* "<
= )* > ? )* @ 3 A B C D,
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%$ G% @ D, H" 5
4 IJ ' # . K %9= 9& "L 5 5
2 % G M N) O
PAQ ;R S Q T.4 -6 V $' W X Y D 5 5
Z : 07.01.2009 gÀ°è N) O \ ] =)* T @ D
^ )*> ;2 $ 8 , _ 5 5 `Y /,
5 5 K _T )*, _ a 4 b )* ' $ J ' # .
S , 4 E > ?
2 D ' # . 4 E%$ %$ c
^E Z,*."
23. Perusal of the said statement would reveal that the accused has made a statement about the dispute between the family members of the deceased, and that the grandsons of the deceased were indebted
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and in order to repay the debt, they have murdered the deceased Akkamma and PW.1 with the help of the police has falsely implicated the accused in the present case by prosecuting under Sections 302 and 201 of the IPC. The perusal of the said statement clearly would depict that the accused has taken defence of alibi. In order to prove that there was some dispute between the family members of the deceased, the said fact has to be established by the accused. The relevant Sections of the Indian Evidence Act are, Sections 101, 103 and 106 which read as under:
"101. Burden of proof. -- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
103. Burden of proof as to particular fact. -- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in
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its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
Section 101 of the Evidence Act whoever desires that any Court to give a judgment as to the liability dependent on the existence of fact, he must prove that the said facts exist. Therefore, the burden is upon the prosecution to bring home the guilt of the accused beyond reasonable doubt. In the present case, the prosecution has bought home the guilt of the accused by leading evidence of witnesses of PWs.1 to 25 who have stood the test of cross-examination and having established the guilt of the accused and the chain of circumstances. When the accused has taken a specific defence regarding the dispute between the family members, the burden lies upon the accused to prove
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the said fact, Section 103 states about a particular fact of proving lies on that person who wishes the Court to believe in its existence, the said fact has to be established. For example, if "B" wishes the Court to believe that at the time in question he was else where, he must prove it. In the present case, it is the plea of alibi taken by the accused and it is for accused to prove plea of alibi.
24. Section 106 of the Evidence Act, emphasis the burden of proving the fact on the person, who has especially the knowledge of the said fact. According to the accused the fact is that there was some dispute between the family members of the deceased and the same was within the his knowledge and thus the burden of proving the said fact is upon the accused. For example, if "A" is charged with the travelling on railway without ticket, the burden of proving that he had a ticket is on him.
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25. The Apex Court in the case of Prahlad Vs. State of Rajasthan [(2019) 14 SCC 438] has categorically held that the silence on the part of the accused in such a matter where he is expected to come out with an explanation, leads to an adverse inference against the accused and at paragraph No.11 held as under:
"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
26. In the present case, the accused has failed to prove that there was any property dispute between the family members which has led to the murdering of the deceased by her relatives. In the absence of any evidence to that effect, the burden which was upon the
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accused to prove the fact which was within his knowledge as envisaged under Sections 103 and 106 of the Evidence Act, it could be applied that the prosecution has succeeded in establishing the facts beyond reasonable doubt and when the accused had taken a specific defence, which was within the knowledge of the accused and the accused fails to offer proper explanation about the existence of such other facts, the Court can always draw an appropriate inference. In the case governed by circumstantial evidence and chain of circumstances which requires to be established by the prosecution and the same having established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act, the accused is to be convicted for the offence as already held the prosecution has established the circumstances beyond reasonable doubt and brought home the guilt of the accused and accordingly, the point framed for
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consideration is answered against the accused and for the reason stated supra.
27. In view of the above, we pass the following:
ORDER
(i) Criminal appeal filed by the accused is dismissed as devoid of any merit.
(ii) The impugned judgment of conviction and order of sentence dated 31.05.2011 passed in S.C. No.182/2009 on the file of the Fast Track Court-V, Bangalore Rural District, Bangalore is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE S*