Karnataka High Court
The State Of Karnataka vs B H Thippeswamy @ Thippeshi on 19 September, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No.230 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL APPEAL NO.230 OF 2017 (A)
BETWEEN:
The State of Karnataka,
By Ramanagara Rural
Police Station,
Ramanagara District,
Represented by
State Public Prosecutor,
High Court of Karnataka,
Bengaluru-01. .. Appellant
( By Sri V.S.Vinayaka, HCGP )
AND:
B.H.Thippeswamy @ Thippeshi,
S/o Honnurappa,
Aged about 35 years,
R/at Ramogandanahalli Village,
Near Nagarjuna College,
S.N.Halli Post, Yalahanka Hobli,
Bengaluru-560 064.
Permanent r/at
EWS 144, Housing Board Colony,
Kelagote, Chitradurga Town. .. Respondent
(By Sri.Hasmath Pasha, Senior Counsel
a/w. Sri.Tejas, Advocate)
This Appeal is filed under Section 378(1) and (3) of Code
of Criminal Procedure, praying to grant leave to appeal against
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CRL.A No.230 of 2017
the judgment and order of acquittal dated 27.08.2016 passed
by the learned 3rd Addl.District and Sessions Judge,
Ramanagara in S.C.No.46 of 2010, thereby, acquitting the
Respondent/Accused of the offences punishable under Sections
376, 302, 392 and 201 of IPC, set aside the judgment and
order of acquittal dated 27.08.2016 passed by the learned III
Addl.District and Sessions Judge, Ramanagara in S.C.No.46 of
2010, thereby acquitting the Respondent/Accused of the
offences punishable under Sections 376, 302, 392 and 201 of
IPC and convict and sentence the Respondent/Accused for the
offences punishable under Sections 376, 302, 392 and 201 of
IPC in the interest of justice and equity.
This Criminal Appeal having been heard through Physical
Hearing/Video Conference and reserved for Judgment on
08.08.2023, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
JUDGMENT
The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.'), challenging the judgment of acquittal dated 27.08.2016, passed by the learned III Addl.District and Sessions Judge, Ramanagara, (hereinafter for brevity referred to as the `Sessions Judge's Court') in S.C.No.46/2010, acquitting the accused of the offences punishable under Sections 376, 302, 392 and 201 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC'). -3- CRL.A No.230 of 2017
2. The summary of the case of the prosecution as could be gathered from the charge sheet is that, on the date 17.09.2009, the accused Thippeswamy being the friend of the victim lady cum deceased (henceforth referred to as 'the deceased'), wife of Yashwantha Reddy, by assuring that he would secure a computer system, took her on his motorcycle bearing registration No.KA-02-EK- 3321, near Mayaganahalli, within the limits of complainant-Police Station and with an intention to commit rape on her and rob the valuables from her, not only raped the deceased, but also, killed by tying her neck with chudidar veil and thereafter, robbed golden chain weighing 21 gms., ear-rings weighing 2.5 gms., fancy hangings weighing 4.5 gms., and a cell phone belonging to her and thereafter, with an intention to destroy the evidence, he removed the clothes worn by the deceased at the time of the offence and threw the same into a bush. Thus, he has committed the offences punishable under Sections 376, 302, 392 and 201 of IPC.
3. After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed -4- CRL.A No.230 of 2017 charges against the accused only for the offence punishable under Sections 376, 392, 302, 201 of IPC. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all twentytwo witnesses as PW-1 to PW-22, got produced and marked documents from Exs.P-1 to P-36(a) and got produced Material Objects from MO-1 to MO-13. From the accused's side, neither any witness was examined nor any documents were got marked as exhibits.
4. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 27.08.2016, acquitted the accused of the offences punishable under Sections 376, 302, 392, 201 of IPC. Challenging the same, the appellant - State has preferred the present appeal.
5. The appellant -State is represented by the learned High Court Government Pleader and respondent/accused is represented by his learned counsel. The learned High Court Government Pleader and the learned counsel for the -5- CRL.A No.230 of 2017 respondent (accused) are physically appearing in the Court.
6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
9. Learned High Court Government Pleader appearing for the appellant-State in his argument submitted that the identity of the accused is not in dispute. He also submitted that there is no evidence to show that 'the deceased' was lastly seen in the company of the accused, however, he submitted that recovery of golden articles have been made at the instance of the accused and the same has been proved by the evidence led by the prosecution. The medical evidence of the doctor also -6- CRL.A No.230 of 2017 shows that the death of the deceased was an unnatural one. At the same time, he also stated that no seminal stains were found on the dress material of the deceased. With this, he submitted that recovery made at the instance of the accused, wherein the ornaments belonging to the deceased were recovered at his instance, is a sufficient proof to prove the guilt against the accused. However, the Sessions Judge's Court did not consider the evidence in that regard in its proper perspective. Stating that when the accused was found in possession of the ornaments belonging to 'the deceased', an adverse inference is required to be drawn against the accused. Learned High Court Government Pleader relied upon a judgment of Hon'ble Apex Court in Ganesh Lal -vs- State of Rajasthan, reported in (2002) 1 Supreme Court Cases 731 in his support which would be referred to at the relevant stage hereafterwards.
10. Per contra, learned Senior Counsel appearing for the learned counsel for the respondent/ accused in his argument submitted that, since the appeal is against a -7- CRL.A No.230 of 2017 judgment of acquittal, the Court must be very cautious in appreciating the evidence led by the prosecution. He also submitted that the missing complaint about the alleged missing of 'the deceased' though was filed with delay, but, it is bereft of any details as to the dress and ornaments worn by her at the time of missing. Further, even though the deceased was said to have been lastly seen by her roommates, who said to have informed about the deceased going with the accused, however, the missing complaint is totally silent about the accused. This creates a doubt in the case of the prosecution. He also submitted that the ornaments and dress materials at MO-2 to MO-11 were not belonging to the deceased. The cause of death has not been arrived at both in the inquest, as well in the post mortem report. The identify of the deceased is not fully established by the prosecution. Though it relies upon a DNA report, however, the said report does not categorically says that PW-11 (mother of the deceased) and her husband were the parents of the deceased. The said DNA report is a mere opinion.
-8-CRL.A No.230 of 2017 Learned Senior Counsel also submitted that there is no evidence to prove that the death of the deceased was homicidal. He also submitted that the inordinate delay in getting the clue about the accused till his arrest, which is of about three months, also creates doubt in the case of the prosecution. Giving more emphasis on the prosecution theory of recovery said to have been made at the instance of the accused, learned Senior Counsel submitted that the entire process of alleged recovery is highly skeptical. It creates a doubt as to within an hour of alleged voluntary statement of the accused, the Investigating Officer is said to have gone to the place alleged to have been shown by the accused for the recovery of the golden articles from a Pawn Broker. This creates a serious doubt in the case of the prosecution. He also submitted that PW-12, a pancha for the alleged recovery panchanama is an interested witness and not a localite. No explanation is given by the Investigating Officer for not taking any of the localite as a pancha for recovery panchanama.
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With greater force, learned Senior Counsel submitted that the police custody of the accused was given after fifteen days of the judicial custody for the second time. As such, giving the accused to the police custody after fifteen days of judicial custody being unlawful, the entire alleged recovery said to have been made in the alleged second time of police custody of the accused is bad in the eye of law. He further submitted that, since the entire case of the prosecution is based on circumstantial evidence, every link of chain of events has to be established by the prosecution beyond reasonable doubt. However, including the concept of motive, there are vital links which have not been established by the prosecution, as such, the chain of circumstance has been broken at several places, in which circumstance, the Court cannot pronounce a judgment of conviction. Thus, it is appreciating these evidence, the Sessions Judge's Court since has acquitted the accused of the alleged offences, the same does not warrant any interference at the hands of this Court. In his support, he relied upon few
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CRL.A No.230 of 2017judgments which would be referred to at the relevant paragraphs hereafterwards.
11. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond all reasonable doubt that on the date 17.09.2009, between 2.30 p.m. to 3.30 p.m., in the field of one Sri Cheluvamurthy, near Mayaganahalli, within the limits of complainant-Police Station, the accused committed rape on 'the deceased' wife of Yashawant Reddy and thereby has committed an offence punishable under Section 376 of IPC?
(ii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused after committing the rape of the deceased, murdered her by strangulating her neck with a chudidar veil which she was wearing and thereby has committed an offence punishable under Section 302 of IPC?
(iii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused robbed the golden ornaments worn by 'the deceased' and thereby has committed an offence punishable under Section 392 of IPC?
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CRL.A No.230 of 2017
(vi) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused after committing the rape and murder of 'the deceased' and robbing the valuables which were in her possession, has with an intention to destroy the evidence, removed the clothes from the dead body of 'the deceased' and threw the same in a bush and thereby has destroyed the evidence and has committed an offence punishable under Section 201 of IPC?
(v) Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
12. Before proceeding further in analysing the evidence laid in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused from the alleged offences punishable under Sections 376, 302, 392, 201 of IPC. Therefore, the accused have primarily the double benefit. Firstly, the presumption under law that, unless his guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the accused is already enjoying the benefit of judgment of acquittal passed under the
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CRL.A No.230 of 2017impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate
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court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be
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relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
13. The entire case of the prosecution is based upon circumstantial evidence. Admittedly, there are no eye witnesses to the alleged incident. As such, as observed by our Hon'ble Apex Court in Munikrishna alias Krishna etc.,
-vs- State by Ulsoor PS, reported in 2022 SCC OnLine SC 1449, the entire chain of evidence must be complete and the conclusions which would be arrived after examining
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CRL.A No.230 of 2017the chain of evidence must point towards the culpability of the accused and to no other conclusion. It is keeping the above principles in mind, the case of the prosecution is required to be analysed.
14. The case of the prosecution is that, one Sri Yashwantha Reddy, son of Krishna Reddy (CW-9/PW-8) lodged a complaint with Kamakshipalya Police Station, Bengaluru, on 19.09.2009 at about 1.35 p.m., stating that his wife i.e., 'the deceased', daughter of Prakash Reddy, aged about 26 years, was residing with her friends in a place called Sunkadakatte at Bengaluru and was working at Kusuma Clinic since a month prior to the date of the complaint. On 17.09.2009, at about 10.00 a.m., she went to the place of her work and worked there till 1.00 p.m., however, she did not return to her room after leaving the hospital. When enquired with the roommates and other friends and relatives, since 'the deceased' was not found, the complainant requested the police to search for his wife. He also stated that his wife was a Graduate in Nursing course and gave cell phone number as
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CRL.A No.230 of 2017No.9379447673. The police registered the same in their Station Complaint No.642/2009 with respect to missing of a person.
15. The above being the position, on the date 20.09.2009, one Sri.Puttaraju (CW-1/PW-1) appeared before the complainant-Police and lodged a complaint as per Ex.P.1 wherein he has stated that, on that day, at 12.00 noon, while he was at home, one Sri.Ramanna @ Pedde, a resident of the same village Mayaganahalli, informed him that while grazing the cattle in the land of one Sri. Cheluvamurthy, he saw a dead body of a female in naked position in a bush. The body appeared to be decomposing and was fowl smelling. Hearing the same from said Ramanna, he joined by one Sri.Jayarama proceeded to the spot immediately and saw the dead body of a female, appears to have been died about four to five days back and the body was under decomposition. The dead body was naked. With this, he suspected that somebody must have murdered her somewhere and thrown her dead body in the spot. The said information
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CRL.A No.230 of 2017was registered in the complainant-Police Station in Crime No.229/2009 at 2.00 p.m. on the same day for the offences punishable under Sections 302, 201 of IPC.
16. The evidence of PW-16 (CW-33) Sri Vinodh Bhat, the then Police Sub-Inspector of complainant-Police Station is on the similar lines as that of evidence of PW-1. The said witness has identified the complaint at Ex.P.1 stating that it was received by him from PW-1 -Puttaraju. The said Puttaraju (CW-1) who was examined as PW-1 also has reiterated the contents of his complaint and identified his complaint at Ex.P.1. He also identified the dead body of the deceased through eight photographs which were together marked at M.O.1 in his evidence. The witness has also stated that the police also drew a scene of offence panchanama in the spot as per Ex.P.2 and collected few hairs found on the dead body.
In his cross-examination, except suggesting to the witness that he does not know as to what was written in the complaint at Ex.P.1, nothing material could be elicited. PW-1 saw the dead body in the lands of one
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CRL.A No.230 of 2017Cheluvamurthy which was of a female and in naked condition was not denied in his cross-examination.
17. Further, PW-5 (CW-4) Dyavaiah in his evidence has stated that, after coming to know that a dead body of a female was found fallen in the lands of Cheluvamurthy, he had been to the said place to see the dead body and to the said place, the doctors have also visited. He saw the dead body which was lying on the ground. The witness has stated that the police have drawn the inquest panchanama in his presence as per Ex.P.6. Though he denied the suggestion which was made in his cross-examination about drawing up of inquest panchanama, the witness has not admitted the same as true. As such, the evidence of PW-1 and PW-16 about they finding a dead body of a lady in a naked position in the lands of one Sri.Cheluvamurthy, was further corroborated by the evidence of this witness (PW-5).
18. PW-6 (CW-7) Jayaramaiah has stated that he knows the land near Mayaganahalli, Bengaluru -Mysuru Highway, on the side of restaurant called Eden Garden
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CRL.A No.230 of 2017Hotel. He keeps going to the lands for grazing the cattle. The police had summoned him to the land of Sri Cheluvamurthy. There PW-1 and others were also present. There was a dead body in the lands of Sri.Cheluvamurthy and police personnel were also present in the said land. The Doctor collected the hairs of the deceased and a panchanama was drawn in the spot. Stating so, the witness has identified the said panchanama at Ex.P.2 and his signature therein as Ex.P.2(b).
In his cross-examination he has given more details about the place where the dead body was found and panchanama was drawn.
19. The evidence of PW-21(CW-34) Sri. H.N. Dharmendra, the then Circle Police Inspector - the Investigating Officer that he drew the inquest panchanama as per Ex.P.6 is thus stands corroborated by the evidence of PW-5. Thus, it stands established that, on 20.09.2009, in the afternoon, the dead body of a lady which was said to be under the process of decomposition was found lying
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CRL.A No.230 of 2017in the land of one Sri. Cheluvamurthy in Mayaganahalli village, within the limits of complainant police station.
PW-21 - the Investigating Officer in his evidence has also stated that after he visiting the spot on 20.09.2009 along with Scientific Officer Dr.Ravindra, he conducted inquest panchanama in the presence of panchas, at which time, he collected two hairs of the deceased, produced before him by the said Dr. Ravindra and seized the same under seizure panchanama. PW-21 also stated that after preparing a rough sketch of the spot as per Ex.P.24, he sent the dead body for postmortem to Rajarajeshwari Hospital. On the next day, since no blood relatives of the deceased were available, with the assistance of his staff, he conducted burial procedure. His staff one Sri.Ananthaiah produced a nose stud of the deceased on 21.09.2009 which he received and entered in P.F.155/2009. He has identified the same at Ex.P.35. These statements of PW-21 have not been seriously disputed from the accused side.
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CRL.A No.230 of 2017
20. The next question that arises is about the identity of the dead body. In that regard, PW-21 the Investigating Officer has stated that, on 25.09.2009 he took steps to trace the details of the deceased and deputed his staff. A tattoo as 'SY' was found on the left hand of the dead body. He intimated all the neighbouring police stations to intimate as to any details could be available in the missing cases registered in their stations. In that background, on 05.10.2009, Kamakshipalya Police Station, Bengaluru intimated that one missing complaint was registered in Crime No.642/2009 on 18.09.2009.
A copy of the FIR and photographs of the missing lady along with report was produced before him. Later, he contacted the complainant in that crime number Sri.Yashwantha Reddy through the mobile number mentioned in the complaint. Said Yashwantha Reddy appeared before him and on the strength of nose-stud seized and also after going through the photographs and tattoo, identified the dead body as that of his wife 'the deceased'. Accordingly, he recorded the statement of Yashwantha Reddy and also of one Smt. Komala, mother
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CRL.A No.230 of 2017of the deceased and Sri. Prakash Reddy, father of the deceased.
PW-21 has further stated that Sri.Yashwantha Reddy (PW-8) who had lodged a missing complaint about his wife, on the strength of nose-stud seized and also after going through the photographs and tattoo, identified that the dead body as that of his wife. He also gave his statement in that regard. Thus, for the first time, the dead body was identified as that of 'the deceased', wife of Yashwantha Reddy.
PW-21 has further stated that based upon the details given by the parents of the deceased about the ornaments worn by the deceased at the time of leaving the home on 17.09.2009 and from the cell phone number of the deceased, he secured call details and found the last call through the said mobile as made from the place of incident. The witness has further stated that the husband of the deceased in his statement had expressed a doubt about the accused as 'the deceased', on the alleged date at 2.00 O'clock has intimated him that on behalf of Santosh (PW-4), she was going with
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CRL.A No.230 of 2017Thippeshi (accused) for purchasing a computer system. Further, the deceased had also intimated other two persons by name Ms.Roopa and Ms.Shantakumari, PWs-2 and 3 respectively, that she was going with Thippeshi for purchasing computer system.
PW-21 has further stated that on 03.11.2009, he gave requisition to draw the blood samples of the parents of deceased to establish the identity of the deceased through DNA test. On 09.11.2009 in the presence of the learned Presiding Officer, secured blood samples of the parents of deceased for DNA test. After sealing the same, he dispatched the blood sample for its test to DNA Laboratory. He recorded the statements of Santosh (PW-4) on the same day. PW-21 has further stated that on 10.11.2009, he recorded the statements of Ms.Roopa and Ms.Shantakumari.
21. Thus, the evidence of PW-21 shows that Ms.Roopa, Ms.Shantakumari and Mr.Santosh were acquainted with 'the deceased'. Therefore, the evidences of those three witnesses who were examined as PWs-2, 3 and 4 about the identity of the deceased is of some
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CRL.A No.230 of 2017importance. It is also for the reason that, according to PW- 8 Yashwantha Reddy, the husband of 'the deceased', after completing her Nursing Training, 'the deceased' was expecting the result of the Nursing Course, during that period, in order to get trained as a Nurse, she was working at Kusuma Nursing Home in Sunkadakatte, Bengaluru. According to PW-11 (CW-10) Smt. Komala, mother of 'the deceased', while her daughter was working in Kusuma Nursing Home, she was staying with PWs-2 and 3. As such also, the statements of PWs-2, 3 and PW-4 regarding the identity of the deceased is of some significance.
22. PWs-2, 3 and PW-4 in their examination-in-chief have uniformly stated that they do not know 'the deceased', as well the accused. PW-2 and PW-3, who according to the prosecution were room-mates of 'the deceased', categorically stated that the deceased was not their room-mate. Even after treating PWs-2, 3 and 4 as hostile, the prosecution could not get any support from them about the identity of the dead body as that of 'the deceased' or about the deceased as a person
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CRL.A No.230 of 2017known to them. Therefore, the evidences of PWs-2, 3 and 4 would not be of much avail to prosecution to establish the identity of the deceased.
23. Apart from the above, the prosecution has also made an attempt to get the identity of the dead body, in that regard, apart from PW-8-the husband of the deceased identifying the dead body through photographs as that of his wife, the Investigating Officer (PW-21) had drawn the blood sample of PW-11, Smt.Komala and one Sri.Prakash Reddy, father of 'the deceased', with the permission of the Court and in the presence of the Court Officials and got the same tested by the competent Laboratory.
24. PW-15 (CW-26) Dr. Sumithra K., the then Medical Officer, Government Hospital at Ramanagara, has stated that, at the request of Investigating Officer and with the permission of Court, she has collected the blood sample of one Smt.Komala and one Sri.Prakash Reddy said to be the parents of the deceased. After filling the required formats in that regard, which are at Exs.P.15 and
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CRL.A No.230 of 2017P.16, she sealed the sample and handed it over to the Investigating Officer for conducting the DNA test.
25. PW-22 - M.G. Ramakrishna, another Investigating Officer has stated about he receiving the DNA report as per Ex.P.36. The said DNA report, which is at Ex.P.36, after giving the details of the tests conducted and the methodology used, has observed that the cumulative probability of the person to whom the skull belongs was found to be included from being the offspring of the parents shown in the photographs of the Identification Forms (Exs.P.15 and P.16), from whom the sample blood was collected and sent. Thereafter, giving the reasons upon DNA profile, the Scientific Officer has concluded his report. He has considered the possibility of the person of whom the skull belongs sent in item No.1, was the offspring of Sri.Prakash Reddy T., and Smt.Komala K., whose sample blood was collected and sent to them in item Nos.2 and 3. Thus, the DNA report certified that deceased was offspring of PW-11 Smt. Komala and her husband Sri.T.Prakash Reddy.
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26. PW-17 (CW-25) - Dr. Suresh V. - Assistant Professor of Raja Rajeshwari Medical College, who conducted the postmortem examination on the dead body, has apart from stating that he had noticed tattoo mark of English letters 'SY' in black colour over front side of right arm of the deceased, in his opinion stated that, as per the DNA report, there was possibility of the person to whom skull belongs is offspring of Sri.Prakash Reddy and Smt.Komala. The said Smt.Komala was examined as PW-
11.
27. PW-11 (CW-10) Smt.Komala, mother of the deceased, has stated that after coming to the police station on 20.09.2009, they were shown with the photographs of the dead body and a video. However, by looking at the photos of the dead body, she could not identify the deceased, but, she noticed tattoo mark on the right arm of the dead body and the nail polish colour on the dead body. It is based on the said tattoo mark and nail polish colour she identified the deceased as her daughter 'the deceased'. Thus, PW-9, PW-11 and PW-21 have uniformly
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CRL.A No.230 of 2017stated that the dead body was that of 'the deceased' wife of Yashwantha Reddy (PW-8) and daughter of Smt.Komala.
28. Though in the cross-examination of PW-8 a denial suggestion was made to the witness suggesting him that dead body was not that of 'the deceased', however, the evidence of PW-11 and PW-21 that it was 'the deceased', daughter of PW-11, who is also the wife of PW- 8, is not denied in their cross-examination. Thus, the oral evidence of PWs -8, 11 and 21 is corroborated by the postmortem examination report at Ex.P.17 about the tattoo mark, found on the dead body and the evidence of PW-17, about acceptability of the DNA report and further corroborated as a reliable evidence in the form of Ex.P.36, which clearly establishes that dead body was that of the daughter of PW-11 - Komala and also Sri. Prakash Reddy. As such the identity of the dead body as that of daughter of Smt. Komala and Prakash Reddy and wife of Yashwantha Reddy stands established.
29. It is the case of the prosecution that the accused had taken 'the deceased' on his motorcycle bearing
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CRL.A No.230 of 2017Registration No.KA-02-EK-3321 near the place called Mayaganahalli on the side of Bengaluru -Mysuru National Highway and in a lonely place, he committed rape upon her, murdered her and robbed her ornaments which she was wearing and also dragged the dead body for some distance and threw it inside a bush to destroy the evidence. In order to establish that accused had taken the deceased with him, the prosecution once again relies upon the evidences of PWs-2, 3 and PW-4.
30. As analysed above, all these three witnesses have not supported the case of the prosecution. On the other hand, they went to the extent of stating that they do not know who the deceased was, so also the accused. Under the said circumstances, the prosecution has suffered a jolt in the beginning itself in its attempt to show that PWs-2, 3 and 4 had the knowledge of the accused taking the deceased with him on his motorcycle on the guise of securing a computer system to her.
31. PW-8 - Yashwantha Reddy, husband of the deceased, in his evidence has stated that on
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CRL.A No.230 of 2017the date 17.09.2009, after completing her work in Kusuma Nursing Home at 1.00 p.m., his wife did not return to her room and the same was informed to him by her friends on 18.09.2009, as such, immediately he came to Sunkadakatte and enquired those friends of his wife and he has also named those friends of his wife as Roopa (PW-2) and Shantakumari (PW-3).
Further PW-8 has also stated that his wife had stated to him that she knows Santosh (PW-4) since four years. He further stated that the said Santosh told him that he was in requirement of a computer system and that accused stating that a person who owes a sum of `40,000/- to him was prepared to give a computer system in lieu of the repayment of the loan amount, had taken 'the deceased' with him to get the said computer. However, as observed above, the said Ms. Roopa and Ms. Shantakumari and Mr. Santosh (PWs-2, 3 and
4) have totally turned hostile to the case of the prosecution and pleaded that deceased was stranger to them. Therefore, the evidence of PW-8 that, as stated to him by PW-4, it was the accused who had taken 'the deceased' with him,
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CRL.A No.230 of 2017is not safe to believe. The prosecution also has not brought out from the mouth of any of the witnesses as to the reason why the accused should take 'the deceased' with him to get the computer system which the accused was intended to give it to Santosh. The accused could have taken Santosh with him and got him the system. The said question remains unanswered by the prosecution.
PW-8 has further stated that after hearing from Santosh, he enquired with the accused, however, the accused stated that he does not know 'the deceased' and she had never come to him. Even PWs-2 and 3 also enquired the accused, for them also, the accused stated the same thing. Thus, he (PW-8) developed suspicion against the accused. The said statement of PW-8 that he enquired with PWs-2, 3 and 4 about 'the deceased' and those witnesses also enquired the accused about 'the deceased' was not confronted to PWs - 2, 3, and 4 in their cross-examination by the prosecution. Thus, the prosecution which had every opportunity to confront PWs-2, 3 and 4 of their interaction with the accused and PW-8, did not made use of the same.
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CRL.A No.230 of 2017
32. PW-11 - Smt. Komala, the mother of 'the deceased' also has stated that on the date 18.09.2009, PW-2 Roopa and PW-3 Shantakumari telephoned to her stating that 'the deceased' who went for training has not returned home on the previous day. The very same witness in her cross-examination from the accused side has stated that said Roopa and Shantakumari did not tell her as to with whom 'the deceased' went on that day. She also stated that after she coming to Bengaluru she enquired the said Roopa and Shantakumari, both of them stated that they did not know with whom Harini went on that day. Thus, the evidence of PW-11 who is, none else than the mother of the deceased, is also not helpful to the prosecution to show and to establish that the deceased Harini was taken by the accused with him on 17.09.2009.
33. Barring the above witnesses, there are no other witnesses examined by the prosecution who have spoken about the accused taking the deceased with him on his motorcycle. Even though PW-13 (CW-15) M unegowda, the landlord of the house where the accused
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CRL.A No.230 of 2017was a tenant has stated that the police had seized a Hero Honda Splendor motorcycle parked in front of their house by drawing a seizure panchanama as per Ex.P.13 and identified the said motorcycle at M.O.12, but, nowhere stated that the said motorcycle was belonging to the accused. The prosecution also did not made any effort to elicit the same from the mouth of the said witness, as such, merely because a motorcycle at M.O.12 is said to have been seized under seizure panchanama at Ex.P.13, by that itself it cannot be inferred that accused had taken deceased with him on that motorcycle.
34. PW-21 - Investigating Officer has stated about he seizing the motorcycle bearing registration No. KA-02-EK-3321, however, he has also not stated that the said motorcycle was belonging to the accused and his investigation shown him that accused had taken the deceased on the said motorcycle. Therefore, the prosecution could not able to place any evidence to show that the deceased who was alleged to have missing on 18.09.2009, was in fact, taken by the accused with him
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CRL.A No.230 of 2017on his motorcycle. Thus, the important link of the accused taking the deceased with him to the alleged place of offence where the rape and murder are said to have been committed upon the deceased, was found missing in the case of the prosecution.
35. The next aspect is about the accused said to have committed the rape upon the deceased. According to the prosecution, the accused has committed rape upon 'the deceased' and then, committed her murder by strangulating her with the veil which she was wearing.
36. Learned High Court Government Pleader for the appellant fairly concedes that none of the witnesses have spoken about the deceased being raped by anybody, much less, by the accused. He also submitted that since the dead body of the deceased was found after 48 hours, that too, in a decomposed state, no evidence had remained on the dead body to come to a conclusion of rape upon the deceased.
37. The earliest document which could have spoken about the alleged rape upon the deceased was the
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CRL.A No.230 of 2017complaint at Ex.P.1. Even though the complainant in the said complaint has stated that the dead body noticed by him was in its naked state and that he suspects that somebody must have killed her and thrown the dead body there, however, he has not suspected any act of sexual assault or rape upon her.
38. The second document in the series is inquest panchanama at Ex.P.6, wherein also, the panchas have not suspected any act of sexual assault or rape upon the deceased.
The third in the series are the evidence of prosecution witnesses. PW-8 Yashwantha Reddy, PW-11 - Komala, husband and mother of the deceased respectively. Since both of them have not seen the dead body of the deceased, but, only identified the deceased as Harini through her photographs at M.O.1 and a tattoo mark on her arm and through certain articles, including dress material said to have belonging to the deceased, neither of them had any clue or suspicion of the alleged rape upon the deceased.
39. Even though PW-9 has stated that the accused shown them the place of the alleged offence stating that
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CRL.A No.230 of 2017the same was the place where he had committed the rape upon the deceased and strangulated her by tying a veil around her neck, but, the same was specifically denied in the cross-examination from the accused side. Merely because PW-8 has stated that it was through accused he came to know that deceased was subjected to rape, the same cannot be taken as a proof of commission of rape upon the deceased, that too, by the accused.
Same is the case with respect to PW-11 also. Her knowledge about the alleged rape upon the deceased is also upon the alleged statement said to have been made by the accused before them. Thus, relying upon a single sentence statement made by PWs-8 and 11 that they have heard about the deceased being subjected to rape by none else than the accused, it cannot be held that the accused has committed the rape upon deceased prior to alleged killing of the deceased.
40. The other evidence which could have thrown some light in that regard is the evidence of PW-17 - Dr. Suresh who conducted autopsy on the dead body of the
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CRL.A No.230 of 2017deceased. The said Doctor though has given a detailed description of the external examination of the dead body and the observations made by him, however, has not mentioned the existence of any symptoms or signs of the deceased being subjected to sexual intercourse or rape prior to her death. He has stated that during the postmortem examination, he collected the blood, viscera and vaginal swab and they were sent to Forensic Science Laboratory (for short 'FSL') for their chemical analysis. The vaginal swab was sent to Pathology also, however after going through the FSL report at Ex.P.34 and the chemical examination report, the witness has opined that vaginal swab test found negative for semen. He stated that no opinion as to the cause of death could be given as the FSL report was negative and the body was in advanced stage of decomposition during the postmortem examination. Thus, medical report also could not say anything about the alleged rape upon the deceased.
41. The last witness in the series is PW-21, the Investigating Officer, who has filed charge sheet in this
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CRL.A No.230 of 2017case. It was for him to say as to on what basis he has added Section 376 of IPC also in the charge-sheet. However, nowhere in his evidence, PW-21 has stated as to on what basis he has included Section 376 of IPC also in the charge-sheet. Thus, it has to be held that there is no evidence, even of a smallest extent, to hold that the prosecution has proved that the deceased was subjected to rape by the accused just before her death.
42. The remaining charges alleged against the accused are the ones punishable under Sections 302, 392 and 201 of IPC. All these charges requires to be taken up together for their analysis since the evidence on this count overlaps with each other.
It is the case of the prosecution that the accused after committing rape upon 'the deceased', strangulated her by tying around her neck a chudidar veil, robbed the ornaments which she was wearing and dragged the dead body to a nearby bush and threw the dead body and clothes of the deceased at two different places and thus, has destroyed the evidence of commission of the crime
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CRL.A No.230 of 2017only to screen himself from the alleged offences. Therefore, the first question to be considered is about the nature of the death of the deceased. It has to be seen whether the prosecution has established that the death of the deceased was homicidal and also it was culpable homicide amounting to murder.
The first witness who speaks about the nature of the death of the deceased is PW-1 -Puttaraju, the complainant, who looking at the place where the dead body was found and the position of the dead body, has suspected that it was the murder of a lady. Accordingly, he gave complaint as per Ex.P.1 suspecting the nature of death as murder. Admittedly, his is only a suspicion.
43. The inquest panchanama at Ex.P.6 supported by PW-5, pancha for the said panchanama, opines the death of the deceased as a murder. Though PW-6 has not specifically stated in his evidence as to the nature of the death and the reasoning for their opinion in the inquest panchanama, however, the inquest panchanama at Ex.P.6 mentions the position of the dead body as having laid
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CRL.A No.230 of 2017down on floor on her back facing the sky and both the legs stretched apart and the body was completely naked. The body was said to be decomposing and the presence of maggots were noticed in the body. The face was said to be turned to black in colour. It is also mentioned that no external injuries were found on the dead body, however, they have opined that deceased must have killed by somebody at some other place and her dead body must have been brought and thrown in the spot where it was found.
44. PW-8 and PW-11 have stated that the deceased was murdered, only based upon an alleged disclosure said to have been made by the accused in their presence and in the presence of the police. Therefore, their evidence also has no basis to arrive at a conclusion that the death of the deceased was homicidal and it is also a culpable homicide amounting to murder.
45. The evidence of PW-20(CW-27) B.C. Ravindra, in-charge Assistant Director of FSL, Bengaluru, who visited the spot and examined the dead body, though had
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CRL.A No.230 of 2017described the position of the dead body and its state as decomposing and bloated, however, he stated that the eyes of the dead body were closed and tongue protruded. His report on the examination of Crime Scene marked as Ex.P.21 also mentions the same. This witness has not even expressed his opinion regarding the nature of the death of the deceased.
46. The important witness who could have spoken about the nature of the death was PW-17 - Dr. Suresh who conducted postmortem examination of the deceased. He has noticed that the body was discoloured, disfigured, decomposed and distended with gas, scalp hair had fallen off. Postmortem peeling of skin was present at most of the places over the body. Tongue and eye balls protruding out of the cavities, numerous maggots of various sizes ranging from 3 mm to 8 mm in length were present. Postmortem animal bite marks seen over both ears and fingers of right hand. No other demonstrable injuries detected over the body. Marbling veins seen over root of the neck and all the limbs.
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CRL.A No.230 of 2017The postmortem report at Ex.P.17 mentioned that skull was intact and scalp was described, larynx and trachea were softened and discoloured. With all these observations and also after going through the FSL report, PW-17 has stated that, no opinion as to the cause of death can be given as the FSL report was negative and body was in advanced stage of decomposition during the postmortem examination.
Therefore, there is no evidence regarding the nature of the death even by PW-17 - the Doctor who conducted autopsy. The prosecution also did not put any question to this witness regarding the nature of the death of the deceased. No attempt was made by the learned HCGP for the appellant by relying upon medical jurisprudence to show that protrusion of eye balls and tongue is possible only in strangulated death and that in similar symptoms in a death due to trauma or road traffic accident can be ruled out.
47. As such, merely because the dead body was found to be laying in a bush near a Highway road with its eye balls and tongue protruded out of cavities and dead
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CRL.A No.230 of 2017body having found in a naked state without any dress upon it, by that itself, it cannot be concluded that death was homicidal and also culpable homicidal, much less, a murder. However, the contention of the prosecution is that since the dead body was found in an unusual circumstances and in unnatural condition and more particularly, the ornaments belonging to deceased were recovered at the instance of the accused, it has to be inferred that the accused has committed the murder of the deceased with an intention to rob valuables from her and also has robbed ornaments said to have been worn by the deceased. The said aspect leads to analyse the evidence placed by the prosecution regarding the alleged recovery at the instance of the accused.
48. In Subramanya Vs. State of Karnataka reported in 2022 SCC OnLine SC 1400, the Hon'ble Apex Court was pleased to analyse the process to be followed by the Investigating Officer for conducting recovery panchanama to make it an acceptable recovery under Section 27 of Indian Evidence Act, 1872 in the following manner.
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CRL.A No.230 of 2017
"84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchanama is completed thereafter the police party along with the accused and the two
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independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act."
Further in the very same judgment at paragraph No.87 the Hon'ble Apex Court was pleased to summarise the conditions necessary for applicability of Section 27 of the Indian Evidence Act as below:
"87. The conditions necessary for the applicability of Section 27 of the Act are broadly as under: -
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra : (1976) 1 SCC 828:
AIR 1976 SC 483.
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Two conditions for application: -
(1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered - Earabhadrappa v.
State of Karnataka : (1983) 2 SCC 330:
AIR 1983 SC 446."
49. In Ganesh Lal's case (supra) relied upon by the learned High Court Government Pleader in his argument the Hon'ble Apex Court has analysed the scope of Section 114 of the Evidence Act. In the said process at paragraph No.15 of its judgment it was pleased to observe as below:
"15. A review of several decisions of this Court, some of which we have cited hereinabove, leads to the following statement of law. Recovery of stolen property from the possession of the accused enables a presumption as to commission of offence other than theft or dacoity being drawn against the accused so as to hold him a perpetrator of such other offences on the following tests being satisfied: (i) the offence of criminal misappropriation, theft or dacoity relating to the articles recovered from the possession of the accused and such other offences can reasonably be held to have been committed as
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an integral part of the same transaction; (ii) the time-lag between the date of commission of the offence and the date of recovery of articles from the accused is not so wide as to snap the link between recovery and commission of the offence; (iii) availability of some piece of incriminating evidence or circumstance, other than mere recovery of the articles, connecting the accused with such other offence; (iv) caution on the part of the court to see that suspicion, howsoever strong, does not take the place of proof. In such cases the explanation offered by the accused for his possession of the stolen property assumes significance. Ordinarily the purpose of Section 313 of the Code of Criminal procedure is to afford the accused an opportunity of offering an explanation of incriminating circumstances appearing in prosecution evidence against him. It is not necessary for the accused to speak and explain. However, when the case rests on circumstantial evidence the failure of the accused to offer any satisfactory explanation for his possession of the stolen property though not an incriminating circumstance by itself would yet enable an inference being raised against him because the fact being in the exclusive knowledge of the accused it was for him to have offered an explanation which he failed to do."
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CRL.A No.230 of 2017The principles laid down above would be borne in mind while analysing the evidence regarding recovery in this case.
50. According to prosecution, the articles that were said to have been recovered in the case were two pairs of ear-ring (golden) one pair of fancy ear-ring, dress material said to have been worn by the deceased at the time of her death and golden neck chain said to be worn by the deceased, cell phone said to be belonging to the deceased which are marked from M.Os.2 to 11 and M.O.13. According to prosecution, all these articles were recovered at the instance of the accused after his arrest on 16.12.2009 by PW-21 - Investigating Officer and his team, by drawing an arrest panchanama as per Ex.P.19. According to PW-21, the accused has given his voluntary statement before him wherein, he volunteered to show the place where the clothes of the deceased were said to have been thrown and the place where he said to have pledged the ornaments worn by the deceased at the time of the commission of the crime, including the receipts of pledge.
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CRL.A No.230 of 2017According to prosecution, more particularly, PW-21 the process of recovery has taken place on different dates. The first recovery was said to have been made on 16.12.2009 i.e., on the day the accused was arrested.
51. PW-21 - the Investigating Officer has stated that the accused was arrested in his house on 16.12.2009, in which regard, an arrest panchanama as per Ex.P-19 was drawn. He has further stated that the accused gave his voluntary statement before him where he volunteered to lead the complainant-Police where he raped the deceased and murdered her and the shops where he had pledged her jewels, the place where he had kept receipts and would produce two-wheeler used in the commission of the crime. The said portion of the voluntary statement was marked at Ex.P-28.
According to PW-21, pursuant to his voluntary statement, the accused took them to his Yelahanka residence and opened a Godrej almirah and took out his pant and handed over two receipts from the right side of the pant. Along with those two receipts, a two-wheeler
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CRL.A No.230 of 2017Hero Honda motorcycle bearing registration No.KA-02-EK- 3321 was also seized. A panchanama was drawn in that regard as per Ex.P-13. The witness has further stated that, one of the receipt was dated 27.09.2009, marked at Ex.P-9, and another receipt seized was dated 20.09.2009, marked at Ex.P-20.
52. To corroborate the evidence of PW-21 on the above point, the evidence of PW-18 (CW-16) R.Rajesh, who is said to be pancha for the said panchanama is required to be seen. PW-18 in his evidence has stated that the accused, whom he know, was residing as a tenant in the house of Munegowda, son of Krishnappa. One morning, the police who had brought the accused with handcuffs, checked the house and found a jewel receipt in the almirah. They also secured a motorbike. The accused was sitting with handcuffs. A panchanama was drawn in that regard, which this witness has identified at Ex.P-19. He has identified the said receipt at Ex.P-20.
53. Thus, there is a major variation between the evidences of PW-18 and Ex.P-19. According to PW-18, the
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CRL.A No.230 of 2017receipt was found kept in an almirah. Further, it was not produced by the accused, but, police found it in the almirah while the accused was sitting with handcuffs. According to PW-18, the said receipt was single, which he has identified at Ex.P-20 and stated that it was seized under a panchanama, which he has identified at Ex.P-19. The evidence of PW-21 is that Ex.P-19 is only an arrest panchanama. A perusal of the said panchanama also shows that it is only an arrest panchanama, but, not a recovery or a seizure panchanama.
Secondly, according to PW-18, the accused was sitting with his handcuffs, whereas, it was the police who found a single jewel receipt in the almirah at the house of the accused. On the other hand, according to PW-21, it was the accused himself who opened a Godrej almirah and took out his pant and handed over two receipts from the right side pocket of the pant. Thus, regarding recovery of these two receipts, there is no consonance between the evidence of PW-18 and PW-21.
Thirdly, according to PW-21, the seizure panchanama was at Ex.P-13 and the number of receipts said to have
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CRL.A No.230 of 2017been recovered under the said panchanama were two in number, which the witness has identified at Ex.P-9 and Ex.P-20 respectively. Ex.P-13 is shown to be a seizure panchanama with respect to two receipts and a motorcycle. Therefore, there is great variation between the evidence of PW-18 and PW-21 with respect to the seizure. The evidence of PW-21 - the Investigating Officer thus stands without any corroboration.
On the other hand, contrary to the evidence of PW-18, who is shown to be an independent pancha for the alleged recovery panchanama, no attempt was made by the prosecution to get the said discrepancy rectified in the evidence of PW-18 by further examining, him since evidently, the oral evidence given by him was not in consonance with the documentary evidence, particularly Ex.P-13 and Ex.P-19. However, the prosecution did not made any attempt in that regard. Consequently, the greater variation which has resulted in a major discrepancy sustains regarding the alleged recovery of two receipts at Ex.P-9 and Ex.P-20.
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54. PW-21 has further stated that, after recovery of the two receipts, the accused led them to Ganesh Jewellers on the very same day i.e., on 16.12.2009. In the presence of pancha witness Kumar and by showing Ex.P-10 (appears to be wrongly mentioned the exhibit number), the owner of the shop Keraram, produced two gold items pledged by the accused, where he drew a panchanama as per Ex.P-10. Thus, two items were seized there, which were one pair of gold ear-rings and fancy hangings containing coral and green beads respectively, which he has identified, as already marked, as MO-2 to MO-4.
55. PW-9 (CW-17) Sri Keraram, the owner of Pawn Broker shop by name Ganesh Enterprises at Nandini Layout, Bengaluru, has stated in his evidence that in September 2009, the accused went to his shop and pledging a pair of earstud with corals and one pair of fancy hangings with corals, took a sum of `3,000/-. He identified a receipt at Ex.P-9 stating that the receipt was given by him at the time of pledging those articles by the
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CRL.A No.230 of 2017accused. He has further stated that three months thereafter, the Investigating Officer had brought the accused to his shop and at the instance of the accused, he had produced those pledged articles before the Inspector who by drawing a seizure panchanama as per Ex.P-10, has seized those articles. The witness has identified those articles at MO-2, MO-3 and MO-4 respectively.
56. PW-12 (CW-18) Kumar in his evidence has stated that he too was present at the time of recovery of articles from the shop of PW-9 Keraram. This witness has stated that, he was told that one pair of ear stud and one pair of hangings were pledged in the said shop of M/s.Ganesh Enterprises. The owner of the shop Sri Keraram (PW-9) produced those articles before the police, who seized them by drawing a panchanama at Ex.P-10. Stating so, the witness has identified the articles at MO-2 to MO-4 as the articles seized under the said panchanama.
57. PW-8 Yashwantha Reddy in his evidence has stated that, on 16.12.2009, he joined by his sister and brother-in-law, had also accompanied the Investigating
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CRL.A No.230 of 2017Officer to Ganesh Jewellers at Nandini Layout, Bengaluru. He stated that the police seized ornaments from the said shop. He also stated that he accompanied the police for recovery of the jewels from Navarang Jewellers, Yeshwanthapur, also. Though he has identified those ornaments at MO-2 to MO-4 and MO-11, but, he has not specifically stated as to from which particular shop MO-2 to MO-4 were seized.
58. PW-11 in her evidence has stated that though the police had telephoned to them on 16.12.2009 about arresting the accused and had called them to come over to the police station, she went to the police station along with her brother on the next day and saw the accused as shown to them by the police.
59. In the light of the above, the following doubts arises with respect to the alleged recovery of MO-2, MO-3 and MO-4 :
(i) Even though PW-21 - the Investigating Officer has stated that at the instance of the accused, two receipts at Exs.P-9 and P-20 were seized from his house,
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however, as observed above, the pancha witness (PW-13) has identified only one receipt at Ex.P-9, whereas, PW-18 another pancha has also stated about recovery of only one receipt, but, he has identified the same at Ex.P-20 and also has stated that the same was recovered under Ex.P-19.
As analysed above, Ex.P-19 was a different panchanama i.e., arrest of the accused panchanama, which has got nothing to do with the recovery and seizure of the receipt at Ex.P-20 or motobike. As such, the evidence of PW-18 regarding recovery of the receipt and seizure of the motorcycle is not safe to believe. Though PW-13 has initially stated that two receipts were taken by the police from the house of accused, however, he has identified only one receipt at Ex.P-9. No attempt was made by the prosecution to get the alleged other receipt identified by the witness. More importantly, even according to PW-13, it was the police who took those two receipts from an almirah in the house of the accused. At that time, the accused was with handcuffs. Therefore, it is not the evidence of PW-13 that it was the accused who
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CRL.A No.230 of 2017either shown the place of the receipt kept by him or produced a receipt or receipts before the police. On the contrary, as observed above, PW-21 has stated that it was the accused who took out his pant from the almirah and handed over two receipts from right side of the packet of the pant. As such, it is highly doubtful that two receipts at Exs.P-9 and P-20 were recovered at the instance of the accused. When the alleged recovery of the receipt itself is doubtful, the subsequent alleged recovery of alleged articles at MO-2 to MO-4 also becomes doubtful.
(ii) The evidence of PW-21 - the Investigating Officer, PW-8, PW-9 and PW-12 are all that two pairs of ear studs were recovered in the shop of PW-9 Keraram. They have described the articles one as a pair of ear stud with corals and another as a pair of coral fancy hangings. Even the recovery panchanama at Ex.P-10 also clearly and specifically mentions that it was only two pairs of ear studs, the first pair is golden ear stud with corals, weighing 2.5 gms. and the second pair was coral fancy hangings, weighing 4.5 gms. However, the articles marked as Material Objects are three in number at MO-2,
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CRL.A No.230 of 2017MO-3 and MO-4, wherein MO-2 and MO-3 each is shown as one pair of ear-rings and MO-4 is shown as pair of fancy ear-rings.
(iii) Lastly, as contended by learned Senior Counsel for the learned counsel for the accused, PW-12, the pancha for panchanama at Ex.P-10, was not a local person near the shop of PW-9, but, he was a close friend of PW-8 Yashwantha Reddy, whom he knows since ten years prior to the date of his evidence. Further, his place of residence was at a distance of 60 KMs. from the complainant-Police Station. According to him, he was called over the phone by the police in the morning, as such, keeping aside all his other work, he appeared before the police. No reasons are forthcoming from the prosecution, including PW-21 - the Investigating Officer, as to what made them to secure this particular pancha who was residing at a distance of 60 KMs. away from their police station, but, not looked for any pancha from the localite where the shop of PW-9 was located.
The above points creates a serious doubt with respect to the alleged recovery of articles at MO-2 to MO-4.
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60. The next recovery said to have been made by the Investigating Officer at the instance of the accused was the alleged recovery of the clothes said to have been worn by the deceased at the time of the incident, which were marked by the prosecution at MO-5 to MO-10. According to PW-21 - the Investigating Officer, on 16.12.2009, accused also took them to the place of incident at Mayaganahalli, situated within their Police Station limits. There, in the presence of two witnesses - Kumar (PW-12) and Ramesh Reddy (PW-10), produced from a bush MO-5 to MO-10, which were the clothes, later identified by husband and parents of the deceased as the clothes belonging to 'the deceased'. The witness has stated that he drew a panchanama as per Ex.P-12 and seized them.
PW-10 has further stated that, the accused having taken them to the place of the alleged incident of murder, stated that he has thrown all the clothes worn by the deceased in a bush located at a distance of about 70 to 80 feet, coming on the side of Bengaluru-Mysuru Highway. He also stated that police packed all those clothes in a
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CRL.A No.230 of 2017white cloth and took signatures of the panchas to the panchanama, which this witness has identified at Ex.P-12. The witness has identified those clothes at MO-5 to MO-10. An interesting point in his evidence is that the witness did not say that accused shown the said bush to the police and to the panchas and produced the clothes of the deceased before them. He has only stated that the accused stated that he had thrown the clothes at a distance of about 70 to 80 feet from the place to which the police were said to have taken the accused on that day. Therefore, it has not come out in the evidence of PW-10 as to how come the dress materials at MO-5 to MO-10 came in the hands of the police.
61. PW-12 Kumar, who is another pancha to the said panchanama at Ex.P-12, in his evidence has stated that, showing a stone boulder at a small distance from the road in Mayaganahalli, the accused stated that it was in the same place, he had raped the deceased and murdered her and also stated that after the commission of the act, he had thrown the dead body in a bush said to be at a
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CRL.A No.230 of 2017distance of 10 feet from there. It is there the police seized the clothes. Stating so, the witness has identified MO-4 to MO-9.
The discrepancies that can be found in the evidence of PW-12 is also that, he too like PW-10, has not stated that the accused shown the place where the clothes were thrown or that the accused produced those clothes by himself before them. As such, even in his evidence also, it is not clear as to how come those clothes came into the hands of the police.
Secondly, this witness has stated that he identifies those clothes from MO-4 to MO-9, whereas, those clothes are at MO-5 to MO-10. MO-4 is a fancy ear-rings. Thus, the evidence of PW-12 is also not reliable. Consequently, the alleged recovery of clothes i.e., MO-5 to MO-10 at the instance of accused also remains doubtful.
62. The next set of recovery according to the prosecution was made on 06.01.2010. According to PW-21, the Investigating Officer, on the said day, he secured the accused to police custody and pursuant to his
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CRL.A No.230 of 2017voluntary statement, the accused took them to Navarang Jewellers, Yeshwanthapura, Bengaluru. On enquiry with the owner by name Narendra, the pledged gold articles were produced after proper identification of the owner. The said article was a batani design Tali chain weighing 21 gms. approximately with the amount mentioned as `15,000/-. A panchanama as per Ex.P-7 was prepared in the presence of one Mr.Srinivasa (PW-14) and Narendra (not examined). However, the said chain (Tali chain) was not shown to this witness and not got identified.
PW-14 (CW-21) Srinivasa in his evidence has stated that the police took him along with accused to Navarang Jewellers. There, at the asking of the accused, the owner of the shop produced a Tali chain weighing 21 gms. The police seized the same by drawing a panchanama as per Ex.P-7. The witness has identified the said Tali chain at MO-11.
63. The last recovery according to the prosecution was also made on the date 06.01.2010, which is of a cell
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CRL.A No.230 of 2017phone alleged to have been belonging to the deceased and taken by the accused. PW-21 - the Investigating Officer has stated that, after recovery of Tali chain, accused took them to Yeshwanthpura Bus Stand, where the alleged friend of the accused by name Ms.Shilpa appeared and handed over the said mobile phone to them. A panchanama as per Ex.P-14 was conducted and the said cell phone was seized in the presence of pancha witnesses by name Srinivasa and Ms.Shilpa. The prosecution did not even get the said cell phone also identified by this witness.
PW-14 Srinivasa has also stated that from the Navarang Jewellers, all of them i.e., himself, police and accused, went near Yeshwanthpura Bus Stand, where stating that she is friend of the accused, one Ms.Shilpa produced a cell phone, which the police seized by drawing a seizure panchanama as per Ex.P-14. The witness had identified the said cell phone at MO-13.
64. The above said two recoveries of MO-11 and MO-13 requires a detailed analysis. Learned Senior Counsel appearing for learned counsel for the accused in
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CRL.A No.230 of 2017his argument vehemently submitted that the alleged recovery made on the date 06.01.2010 was after getting the accused to police custody for the second time beyond the period of fifteen days of judicial custody of the accused. As such, the police custody and consequently, the recovery becomes invalid in the eye of law. In support of his contention, learned Senior Counsel for the accused relied upon the following judgments of our Hon'ble Apex Court :
In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi -vs- Anupam J. Kulkarni, reported in (1992) 3 Supreme Court Cases 141, with respect to the maximum period during which an accused can be kept in police custody and whether such police custody can be intermittent and cannot be extended beyond first fifteen days of the detention of the accused, if in case it is intermittent with the judicial custody, the Hon'ble Apex Court was pleased to observe in Paragraphs-
7, 8 and 13 as below :
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" Para-7. .........................
These observations make it clear that if an accused is detained in police custody, the maximum period during which he can be kept in such custody is only fifteen days either pursuant to a single order or more than one when such orders are for lesser number of days but on the whole such custody cannot be beyond fifteen days and the further remand to facilitate the investigation can only be by detention of the accused in judicial custody.
Para-8. Having regard to the words "in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole" occurring in sub-section (2) of Section 167 now the question is whether it can be construed that the police custody, if any, should be within this period of first fifteen days and not later or alternatively in a case if such remand had not been obtained or the number of days of police custody in the first fifteen days are less whether the police can ask subsequently for police custody for full period of fifteen days not availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days covered by the proviso. The decisions mentioned above do not deal with this question precisely except the judgment of the Delhi High Court in Dharam Pal case. Taking the plain language into consideration particularly the words
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"otherwise than in the custody of the police beyond the period of fifteen days" in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days. To this extent the view taken in Dharam Pal case is correct.
Para-9 : xxx xxx
Para-10 : xxx xxx
Para-11 : xxx xxx
Para-12: xxx xxx
Para-13. Whenever any person is arrested under Section 57 CrPC he should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. If the
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arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate along with the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned
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therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. If the investigation is not completed within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to Section 167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Consequently the first period of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody."
In Gautam Navlakha -vs- National Investigation Agency, reported in 2021 SCC OnLine SC 382, after referring to Anupam J. Kulkarni's case (supra), in Paragraph-103, the Hon'ble Apex Court was pleased to observe that the period of custody begins not from the time of arrest, but, from time the accused is first remanded. Police custody can, in a case falling under the Cr.P.C. (not under the UAPA), be given only during the first fifteen days.
In Central Bureau of Investigation -vs- Vikas Mishra alias Vikash Mishra, reported in (2023) 6 Supreme Court
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Cases 49, the Hon'ble Apex Court was pleased to observe that, the view taken by it in Anupam J. Kulkarni's case (supra), requires re-consideration. With the said observation and considering the facts before it, the Hon'ble Apex Court observed that, in the above case, the Special Judge had allowed the police custody of the accused for seven days. The respondent/accused got himself admitted in the hospital during the period of police custody and obtained an interim bail. The CBI could not investigate the accused in the police custody though having a valid order in its favour. Thus, the respondent/accused had successfully avoided the full operation of the order of police custody granted by the learned Special Judge. The Hon'ble Apex Court observed that, by not permitting the CBI to have the police custody interrogation for the remainder period of seven days, it will be giving a premium to an accused who has been successful in frustrating the judicial process. In the said circumstances, the Hon'ble Apex Court observed that a view taken by it in Anupam J. Kulkarni's case (supra), requires re-consideration and permitted the appellant/CBI
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to have the police custody remand of the respondent for a period of four days.
65. In addition to the above, in a latest judgment of the Hon'ble Apex Court in V.Senthil Balaji -vs- State, Represented by Deputy Director and others, reported in 2023 SCC OnLine SC 934, in a matter falling under the Prevention of Money Laundering Act, 2002, wherein the question with respect to detention of an accused and custody of an accused and also Section 167 of Cr.P.C., came for consideration, the Hon'ble Apex Court while summarising the law in Paragraph-95 of its judgment was pleased to make the observations as below :
" 95. Summation of Law:
i. xxx xxx
ii. xxx xxx
iii. xxx xxx
iv. xxx xxx
v. The maximum period of 15 days of police
custody is meant to be applied to the entire period of investigation - 60 or 90 days, as a whole.
vi. The words "such custody" occurring in Section 167(2) of the CrPC, 1973 would include not only a
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police custody but also that of other investigating agencies.
vii. The word "custody" under Section 167(2) of the CrPC, 1973 shall mean actual custody.
viii. Curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of investigating agency would not act as a restriction. ix. Section 167 of the CrPC, 1973 is a bridge between liberty and investigation performing a fine balancing act.
x. The decision of this Court in Anupam J. Kulkarni (supra), as followed subsequently requires reconsideration by a reference to a larger bench."
With the above, the Hon'ble Apex Court directed its registry to place the matter before the Hon'ble Chief Justice of India for appropriate orders to decide the larger issue of the actual impact of Section 167 of Code of Criminal Procedure, 1973, as to whether the fifteen days period of custody in favour of the police should be only for the first fifteen days of remand or spanning over the entire period of investigation - sixty or ninety days, as the case may be, as a whole.
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CRL.A No.230 of 2017From the above judgments, it is clear that the view of the Hon'ble Apex Court in Anupam J. Kulkarni's case (supra), was observed to be referred to a Larger Bench in its subsequent two judgments by the Hon'ble Apex Court i.e., in Vikas Mishra's case (supra), and in V.Senthil Balaji's case (supra).
It is keeping the above observations of Hon'ble Apex Court in mind, the alleged recovery said to have been made in the instant case on 06.01.2010 is required to be analysed.
66. With respect to the recovery of the alleged gold chain at MO-11 said to have been made on 06.01.2010, though PW-21 - the Investigating Officer has stated that, pursuant to his voluntary statement, the accused took them to Navarang Jewellers, Yeshwanthpura, Bengaluru, but, PW-14, an independent pancha, has stated that it was the police who took them to the said shop, though the accused was with them. Therefore, at the very first instance, to the place of the alleged pledge, it was not the accused who led the police team and the panchas, but, it
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CRL.A No.230 of 2017was the police themselves who took the entire team, including accused and panchas to the said shop.
Secondly, neither PW-14 nor PW-21 have stated that it was at the instance of the accused and after seeing the Pawn receipt, if any, (which in this case is said to be one at Ex.P-20), the shop owner Sri Narendra produced the golden chain at MO-11. Therefore, it is not known as to how come the alleged owner of the said shop could produce MO-11 before the Investigating Officer and panchas without even knowing the details of the pledge. It is nobody's case that said shop owner Sri Narendra was familiar to the accused and that he had the knowledge that police would come and seek the production of the said golden chain at MO-11. This also adds doubt to the alleged recovery of MO-11.
Thirdly, according to PW-21, the receipt at Ex.P-20 is the receipt recovered at the instance of the accused and the receipt is the proof of the accused pledging the golden chain at MO-11 with Navarang Jewellers. However, as already observed above, the very evidence about the recovery of the two receipts at Ex.P-9 and Ex.P-20 at the
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CRL.A No.230 of 2017instance of the accused is highly doubtful. Therefore, PW-21 getting a clue of the alleged pledge of MO-11 through Ex.P-20 also remains doubtful.
Fourthly, even though PW-8 has stated that he accompanied the panchas, accused and the police to both Ganesh Enterprises and Navarang Jewellers, however, neither the Investigating Officer (PW-21) nor the panchas have spoken about the presence of PW-8 at the time of alleged recovery. As such, the evidence of PW-8 regarding the alleged recovery of MO-2 to MO-4 and MO-11, cannot be accepted.
Fifthly, even though the accused was said to have been arrested and produced before PW-21 on 16.12.2009 itself and even though the accused was said to have given his voluntary statement on the very same day, pursuant to which, the recovery of MO-2 to MO-4 were said to have been made on the same day, however, no reasons are forthcoming from the prosecution side as to why the recovery of MO-11 and MO-13 were not made on the same day, but, were shown to have been made nearly twenty days after the first alleged recovery.
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CRL.A No.230 of 2017Lastly, though PW-8 and PW-11 have identified the clothes and jewels said to be belonging to the deceased, however, the prosecution has not placed any evidence to show that as at the time of the alleged commission of the crime, the deceased was wearing those clothes and ornaments. Thus, the alleged recovery of MO-2 to MO-11 retains a serious doubt with it, making it not safe to believe.
67. According to the prosecution, PW-21 - the Investigating Officer recovered the cell phone at MO-13 also on 06.01.2010. The said cell phone was said to have been belonging to the deceased, which after the commission of the crime, the accused was said to have handed it over to one girl by name Ms.Shilpa, who was said to have been known to him. PW-21 has stated that, after recovery of MO-11, the accused took them to Bus Stand at Yeshwanthapura, Bengaluru, where Ms.Shilpa appeared and handed over the said cell phone to them. The same was seized by drawing a panchanama as per Ex.P-14.
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CRL.A No.230 of 2017Though PW-14 Srinivas has stated that himself, along with the accused and the police had been near to Yeshwanthpura Bus Stand on 06.01.2010, where one Ms.Shilpa, who is said to be a friend of the accused, had produced a cell phone and the same was seized under a panchanama at Ex.P-14 and also identified the said cell phone at MO-13, however, even to the said place of recovery, which is said to be Yeshwanthapura Bus Stand also, the accused did not lead the team of police and panchas. Therefore, it is not known as to how come the prosecution went to the said place without having any knowledge or information.
Secondly, the evidence of PW-14 and PW-21 says that, in the said Bus Stand, one Ms.Shilpa produced the said cell phone before them. Except the say of PW-21 and PW-14 that said Ms.Shilpa was claiming to be the friend of the accused, there is nothing on record to corroborate the same. The alleged friendship between accused and Ms.Shilpa has been specifically denied in the cross-examination of these witnesses and also the accused
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CRL.A No.230 of 2017has not admitted the alleged friendship in his statement under Section 313 of Cr.P.C.
Thirdly, none of the prosecution witnesses, including PW-14 and PW-21, have stated as to how did Shilpa came to know that accused and the police with panchas, would come to Yeshawanthapura Bus Stand on the date 06.01.2010 and that she was required to produce the cell phone before them.
Lastly, the said cell phone was not got identified by PW-8, the husband of the deceased. Therefore, there is no evidence that the cell phone at MO-13 was standing in the name of the deceased and the alleged recovery of cell phone at MO-13 stands not proved due to the evidence regarding the alleged recovery appears to be not worth to be believed. As such, the recoveries of all the incriminating materials from MO-2 to MO-13 remains doubtful.
68. Further, the accused was charged even for the offence punishable under Section 392 of IPC. The analysis of the evidence made above would go to show that the
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CRL.A No.230 of 2017prosecution could not able to prove that the articles at MO-2 to MO-4 and MO-11 were found on the body of the deceased at the time of commission of the alleged offence and that those articles were recovered at the instance of the accused. That being the case, it cannot be held that those articles were robbed by the accused from the possession of the deceased. Thus, when the prosecution could not able to establish that those articles were recovered from the possession of the accused, the question of drawing any adverse inference against the accused for he not giving any explanation for the alleged possession of those articles with him would not arise.
69. The prosecution has not come up with any evidence with respect the existence of any motive behind the alleged commission of the crime by the accused. Even though the charge sheet attributes the motive of robbery of valuables from the possession of the deceased and committing the rape upon the deceased as the motive said to have been had by the accused, however, none of the evidence led by the prosecution, either oral or
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CRL.A No.230 of 2017documentary, have whispered anything about the alleged motive.
70. In the light of the observations made above, when the prosecution could not able to prove that the deceased was subjected to rape by the accused and when the prosecution could not even able to prove that there was any robbery of the articles from the possession of the deceased by the accused, the aspect of motive fails to be established on its own. In a case of circumstantial evidence, like the one on hand, the concept of motive is also one of the important links in the chain of circumstances. However, like several other important links, even this link of motive also stands missing in the case of the prosecution.
71. The defence of the accused is a general denial. Further, the accused has also taken a contention that the deceased was stranger to him and he being a resident of a distant place called Chitradurga, running a Hotel there, the question of he coming to Bengaluru, meeting the deceased regularly and taking her to any other place would not
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CRL.A No.230 of 2017arise. In that regard, the accused got examined one Sri Manjunath R.S. and one Sri Ramesh as DW-1 and DW-2. Both of them claiming themselves to be the permanent residents of Chitradurga have stated that they know the accused, who is running a Hotel by name Avinash Hotel at Chitradurga. Both of them have contended that they are petty businessmen near the said Hotel Avinash. They also stated that accused is a resident of Chitradurga, but, not of Bengaluru. They have expressed their ignorance about the alleged incident and alleged involvement of the accused in the commission of crime.
Further, since PW-13 Munegowda, the owner of the house wherein the accused was a tenant himself has stated that the accused was a tenant in his house and has also stated that the motorcycle at MO-12 belonging to the accused were seized by the police from the premises of the said house, it cannot be believed that accused was not a resident of Bengaluru. As such, it cannot be believed that the accused had no occasion to lease a house at Bengaluru and stay there. Still, when it is the case of the
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CRL.A No.230 of 2017prosecution that accused has committed the alleged offence charged against him, the entire burden of proving the alleged guilt against the accused was upon the prosecution. However, as observed above, except proving that the death of 'the deceased' was unnatural death, the prosecution neither could prove the last seen theory and show that the deceased was lastly found in the company of the accused nor could not establish that the death of the deceased was culpable homicide. The prosecution could not also prove that deceased was subjected to rape and she was wearing ornaments from MO-2 to MO-4 and MO-11 and that they were robbed by none else than the accused. The prosecution case suffers with serious doubts in proving the alleged guilt against the accused and the benefit of those doubts are naturally required to be given to the accused.
72. The Sessions Judge's Court since observing that the prosecution could not able to establish the guilt against the accused has appropriately pronounced the
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CRL.A No.230 of 2017judgment of acquittal, we do not find any reason to interfere in it.
Accordingly, we proceed to pass the following:
ORDER The Criminal Appeal stands dismissed as devoid of merits.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court without delay.
Sd/-
JUDGE Sd/-
JUDGE bk/BVK