Bangalore District Court
The State By vs Came There And Took The Deceased Along ... on 7 February, 2023
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH No.20)
P r e s e n t:
Smt. Yermal Kalpana, B.Sc., LL.M.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 3 rd day of February, 2023
S.C.No.514/2020
Complainant:- The State by
D.J.Halli Police station, Bengaluru
[By Public Prosecutor]
Vs.
A c c u s e d:- Sri.Sandeep
S/o Late Armugam,
Aged about 32 years, R/a No.18,
1st Cross Road, Vishweshwara Nagar,
Near Mangalakshmi Temple,
Shampura Main Road, Bengaluru-45.
J U D G M E N T
The D.J Halli police have registered the case against the accused under sections-302 and 201 of the Indian Penal Code, in Crime No.323/2019.
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2. The brief facts of the prosecution case is that the deceased Ambarish S/o Sri.Nagappa Teganuru- CW10 was working as a driver at Lakshmi Hyundai car show room situated at Kempapura along with the accused Sandeep and both of them became friends and the accused was oftenly taking the deceased Ambarish to his house for lunch. The deceased had told Smt. Shilpa-CW16 the wife of the accused that the accused was having extra marital relationship with another lady, which enraged the accused and he decided to do away with the life of Ambarish. In this connection, on 22.11.2019 when the deceased was having alcohol at 5.00 pm at Sangeetha (Reddy) Bar and Restaurant situated near Mangalakshmi temple and the accused came there and took the deceased along with him to his house situated at House No.18, 1 st Cross, Vishweshwara Nagar, near Mangalakshmi temple, 3 SC No.514/2020 Shampur main road, Bengaluru. At his house, the accused asked CW15-Emmanuel to bring alcohol and after CW15 brought the alcohol, the accused made the deceased to drink the alcohol and when the deceased was highly intoxicated, at around 8.30 pm, the accused assaulted the deceased with a beer bottle on his forehead and on seeing this, when CW16-the wife of the accused enquired him about his act, he locked her inside the room of their house and assaulted the deceased with a lamp stand on his head and face and also stabbed on his neck with a knife and murdered him. The accused later removed the bolt of the door, in which he has locked the CW16 and CW16 saw the deceased lying in a pool of blood and as she was scared, she went to her parents house situated at Doddanna Nagar, D.J.Halli, Bengaluru. The accused with an intention to destroy the evidence tried to burn the knife and beer 4 SC No.514/2020 bottle used to assault the deceased, the shoes and purse of the deceased on the terrace of his house and tried to burn, but as it could not be burnt fully, the accused collected the remains in a bag and threw them into a drainage situated at HBR Layout. The accused later himself surrendered before the D.J.Halli police station at mid night at 12.30 am and confessed about his act before HC- Govinda Nair who was on station duty and after recording the statement of the accused the D.J.Halli Police have registered the FIR and after completion of the investigation have filed the charge sheet against the accused for the offence punishable under sections 302 and 201 of the Indian Penal Code.
3. The accused was arrested and produced before the JMFC Court and remanded to the judicial custody and since then he is in judicial custody. After the charge sheet was 5 SC No.514/2020 filed, this case was sent to this Court vide committal order dtd.03.03.2020. The accused was produced before the Court and after hearing both the parties on charge, the charge was framed against the accused for the offences punishable under sections-302 and 201 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.
4. The prosecution in support of its case has examined 25 witnesses out of the 27 witnesses. The prosecution has got marked Ex.P. 1 to P.32 documents and MO.1 to 18 were got marked.
5. The statement of the accused under section 313 of the Cr.P.C. has been recorded. The accused has denied all the incriminating evidence appearing against him and chosen not to lead defence evidence.
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6. Heard arguments and perused the materials on record.
7. The learned counsel for the accused has relied upon the following decisions:-
1. 2010(6) SCC 736 (Bajj Nath Sah Vs. State of Bihar)
2. Crl.A.No.642/2018 (Siva Vs. State by Inspector of Police) Madras High Court
3. 2022(0) Supreme (Kar) 443 (Rangaswamy Vs. State of Karnataka)
4. 1994 Crl.L.J. 3139 (Kartar Sing Vs. State of Punjab)
5. AIR 1995 SC 980 (Shivappa Vs State of Karnataka)
6. Crl.Appeal No.242/2022 (Subramanya Vs. State of Karnataka)
7. Crl.A.No.2374/2014 (Satye Singh and anr. Vs. State of Uttarakhan)
8. 2022(0) Supreme (SC) 1112 (S.Kaleswaran Vs. State)
9. Crl.A.No.378/2015 (Chandrapal Vs. State of Chattisgarh)
10. 2022 Live Law (SC) 670 (Ram Niwas Vs. State of Haryana)
11. AIR 1952 SC 343 (Hanuman Govind and anr. Vs. State of M.P.)
12. (1973) 2 SCC 793 (Shivaji Sahabrao Bobade Vs. State of Maharashtra)
13. 1984(0) Supreme (SC) 181 (Sharad Biridhichand Sarda Vs. State of Maharashtra) 7 SC No.514/2020
14. 2020 (0) Supreme (SC) 569 (Shaja @ Shaja Ismail Mohd. Shaikh Vs. State of Maharashtra)
15. (2022) 9 SCC 417 (Muruli and anr. Vs. State of Rajastan)
16. AIR 1999 SC 3318 (State of H.P. Vs. Jai Lal and ors)
17. AIR 2020 SC 806 (Ramesh Chandra Agrawal Vs. Regency Hospital Ltd and ors)
18. Crl.A.No.1559/2022 ( Rajendra Prasad Vs. State of Rajasthan)
19. Crl.A.No.285/2022 (Nandu Singh Vs. State of Madhya Pradesh)
20. Crl.A.No.1121/2016 (Anwar Ali and anr. Vs. State of Himachala Pradesh)
21. 2017 SCC Online Bom 9109 (Ramesh Durgappa Hirekerur Vs. State of Maharashtra)
22. Crl.A.No.804/2011 (Ram Prathap Vs. State of Haryana)
8. The points that arise for my consideration are as under:-
1) Whether the prosecution proves beyond reasonable doubt that the accused has killed Mr.Ambarish and thereby committed the offence punishable under section-302 of the Indian Penal Code?
2) Whether the prosecution proves beyond reasonable doubt that the accused with an intention to destroy the evidence has burnt 8 SC No.514/2020 and thrown the weapons used for the commission of the offence, and thereby committed the offence punishable under section-201 of the Indian Penal Code?
3) What order?
9. My answer to the above points are as under:-
Point No.1 : In the affirmative Point No.2 : In the affirmative Point No.3 : As per final order for the following:-
REASONS
10 . Point N os.1 & 2:- The prosecution in order to prove its case, has examined 25 witnesses i.e PW1 to 25 out of the 27 witnesses mentioned in the Charge sheet. The prosecution has also marked Ex.P1 to Ex.P32 documents and M.O.1 to 18. Out of the witnesses examined, PW.1
-Appu and PW.6-Nataraj are the witnesses to the first information given by the accused; PW.2-Shilpa- the wife of 9 SC No.514/2020 the accused and an eye witness to the incident; PW.3 - Nawaz Pasha and PW.7-Syed Sarfaraj Ahamed are the seizure mahazar witnesses; PW.4-Shanmugam and PW.5- Vinod are the spot mahazar witnesses; PW.8- Lakshmiputra, PW.9- Vinay Kumar, PW.10-Saheb Gowda are the Inquest mahazar witnesses; PW.11-Nagappa is the father of the deceased; PW.12- Sridhar.G is the constable who had submitted the FIR to the Court; PW.13- Santhosh Subhash Badiger is the constable who had taken the seized articles to FSL, Madiwala; PW.14- Mahesh, PW.15-Emanuel, PW.16-Basavanagowda Patil and PW.17-Fakirappa are the circumstantial witnesses; PW.18-Govind Naik is the SHO who had recorded the statement of the accused and registered the FIR; PW.19- Gowdappa Rayappa Biradar is the police constable who has written the spot mahazar; PW.20-Dr.B.M.Nagaraj is the doctor who has conducted the 10 SC No.514/2020 postmortem; PW.21- Manjunath.B.H is the constable who has written the seizure mahazar; PW.22- Ajay Sarathi and PW.23-Keshavamurthy are the Investigating officers; PW.24- Uma.K is the learned Magistrate who has recorded the confession statement of the accused and PW.25- Dr.Srividya.K has conducted the chemical and serology examination of the articles in the FSL.
11. The material witness in this case is PW2 Shilpa-the wife of the accused. PW2 in her evidence before the Court has admitted that her husband the accused and the deceased Ambarish were working together at Lakshmi Huyndai car showroom, due to which, they had become close friends. She has also admitted that the deceased used to come to their house on some occasions to have meals. In her chief examination itself she has deposed that about two years ago, when she and her husband had gone 11 SC No.514/2020 outside and had come back to their house, they had seen the dead body of the deceased inside their house and so she went to her mother's house and the accused went to the police station to lodge the complaint. Further, she has also deposed that the police had compelled them that as the deceased was found dead in their house they had to confess that they only have murdered the deceased and as they have two children, she agreed to be a witness in this case.
12. PW2 was subjected to cross examination by the learned Public Prosecutor and during the course of her cross examination, she has admitted that she had given her statement U/s 164 of Cr.PC before the Court as per Ex.P2 and she knows the contents of Ex.P2. She has also admitted that prior to recording her statement, she was asked whether there was any pressure or compulsion to 12 SC No.514/2020 give her statement, but she had stated that there was no such pressure or compulsion and that she has given the statement voluntarily. Further, she has also agreed that the deceased Ambarish had told her that her husband was having an illicit relationship with another woman and she had told about the same to her husband.
13. PW2 during the course of her cross examination by the Learned Public Prosecutor has also admitted that her husband and the deceased were consuming alcohol in their house when she was working in the kitchen and they were quarreling with each other and has further stated that when her husband hit Ambarish with a beer bottle, she requested him to let go of Ambarish, but her husband beat her and locked her in the room and about 10 to 15 minutes later, when he opened the door, she saw Ambarish lying on the floor in a pool of blood and after 13 SC No.514/2020 seeing the same, she had gone to her mother's house. Further she has also stated that when she and her husband had gone out from their house on the date of incident, they had locked their house while going out.
14. The prosecution has also examined PW1-Appu-the tenant of the accused has denied about the police taking his signature in Ex.P1 and also the contents of Ex.P1, but he has stated that later he came to know about the case.
15. The prosecution has also examined PW6-Nataraj who has signed the statement given by the accused himself while confessing about the murder committed by him, at the police station. But, he has admitted that when he gone to the police station in connection with his personal work, the police have taken the signature on Ex.P1 at the police station itself.
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16. The prosecution has examined PW3-Nawaz Pasha and PW.7- Syed Sarfaraj Ahamed- the signatories to Ex.P.4- the seizure mahazar and both of them have deposed that the police have not seized any article in their presence, nor do they know the contents of the seizure mahazar Ex.P4. PW.7 has also deposed that the accused had not taken them and the police to the Rajakaluve situated on BDA complex main road, HBR Layout, nor seized any articles in his presence. According to him, he had signed Ex.P4 at Ex.P4(b) in the police station when he had gone to participate in the auction sale of vehicles at the police station.
17. PW4-Shanmugam has deposed that he had signed the spot mahazar-Ex.P5 outside the house of the accused, situated in the ground floor where he was residing as a tenant under the accused and in which, the accused was 15 SC No.514/2020 residing in the upper floor. Further he has also stated that he has affixed his signature Ex.P5(a) on the spot mahazar Ex.P5, outside his house and not inside the house of the accused. Even in his cross examination by learned Public Prosecutor, he has admitted that the blood stained cotton, blood stained broken lamp (3 pieces), blood stained saree with a box and sample cotton were shown to him by the police outside the house of the accused, and not inside house of the accused.
18. PW5-Vinod another spot mahazar witness has deposed that he has signed Ex.P4-the spot mahazar at the upper floor of his house, where he was residing as a tenant in the building belonging to the accused. He has admitted that the police had come to the house of the accused while preparing the spot mahazar, though he has denied about the police seizing the blood stained cotton, blood stained 16 SC No.514/2020 broken lamp (3 pieces), blood stained saree with a box and sample cotton.
19. PW-8 Lakshmiputra; PW9 Vinaya Kumar and PW10 Saheb Gowda-the inquest mahazar witnesses though have identified their signatures Ex.P6(a); Ex.P6(b) and thumb impression in the inquest mahazar - Ex.P6, they have stated that the police have not conducted the inquest panchanama on the body of the deceased in their presence, nor had they seen the injuries on the body of the deceased.
20. PW.11-Nagappa the father of the deceased Ambarish has turned hostile by stating that he does not know how his son has died, but he has admitted that after receiving the call from the D.J.Halli Police Station, he had gone to Dr. B.R. Ambedkar Hospital and had seen the dead body of his son. Further he has also deposed that he has 17 SC No.514/2020 not given his statement as per Ex.P6(c) stating that he came to know about the accused murdering his son with beer bottle, lamp stand and knife.
21. PW. 12-Sridhar G is the Head Constable, who has submitted the FIR on 23.11.2019 to the jurisdictional Magistrate and had reported about the same to the SHO along with his report Ex.P7.
22.PW-13-Santhosh Subhash Badiger is the police constable who has taken the seized articles of this case to the FSL Madiwala, and had obtained the acknowledgment- Ex.P8 given by the FSL and submitted the same to the SHO.
23.PW-14-Mahesh the supplier of Sangeetha Bar has denied about the incident and he has also stated that the accused and the deceased were not regular customers of his Bar and further that he has not given his statement as per Ex.P10 to the police.
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24. PW-15-Emmanuel has denied that on the date of the incident, the accused had taken him to his house or that he had given Rs.100/- to him asking him to get a tin of beer which he had brought from Sangeetha Bar and handed over it to the accused. Further, he has also stated that he has not given his statement as per Ex.P11 to the police.
25.PW.16-Basavanagowda Patil a native of the district where the deceased was residing has admitted that he has seen the dead body of the deceased Ambarish at Dr. Ambedkar Medical College & Hospital, where he came to know that on 22.11.2019 the accused had taken the deceased to his house from a Bar at Shampur and after giving beer to the deceased, he had murdered the deceased by assaulting him with a beer bottle, lamp stand and knife. Further he has also deposed that he came to 19 SC No.514/2020 know that in order to destroy the evidence, the accused had washed away the blood stains from the floor, put the body of the deceased in a plastic bag, took the beer bottle pieces, knife and his own blood stained clothes to the terrace and put fire to it and he also came to know about the incident while the inquest mahazar was conducted.
26. PW17-Fakirappa another native of the district where the deceased originally belonged to, has admitted that he was asked by the police to come to the hospital where the body of the deceased Ambarish was kept and he was informed in the hospital that Ambarish was murdered.
27. PW18-the Head Constable who was in-charge of the D.J.Halli Police station on 23.11.2019, has stated that, at around 12.30 am, the accused came to the police station voluntarily and informed him that he had committed the 20 SC No.514/2020 murder of Ambarish and after recording the statement of the accused and informing about the same to his higher authorities, he has registered the FIR-Ex.P12 and he has also identified the statement Ex.P1 which was given by the accused and he has also stated that the accused has put his thumb impression on Ex.P.1 and also has signed the statement Ex.P1 at Ex.P1(d).
28. PW19-Gowdappa Rayappa Biradar-the police constable has deposed that Ex.P5-the spot mahazar was written by him in his own handwriting as per dictation of the pancha's and he has identified his signature as per Ex.P5(c)-spot mahazar. Further he has also deposed that even the Police Inspector was present when the spot mahazar- Ex.P.5 was written and the articles were also seized in the presence of the pancha's at the spot itself. 21
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29. PW20 Dr.B.M.Nagaraju-the Medical Professor and HOD of the Forensic Medical Department of Dr.B.R. Ambedkar Hospital has deposed that on 24.11.2019 he has received the requisition from the I.O of D.J.Halli Police station to conduct postmortem on the body of the deceased Ambarish, aged about 28 years, and after conducting the postmortem and noticing the external appearance and injuries and after dissecting the body, he has given his opinion in his PM report as per Ex.P15 stating that "Death was due to shock and hemorrhage, consequent to multiple homicidal injuries sustained". Further he has also deposed that the injuries mentioned in his report is possible if a person is assaulted with the knife M.O.1 and M.O.2 Brass lamp, shown to him.
30. PW.20 was subjected to cross examination by the counsel for the accused. He has admitted that he does not 22 SC No.514/2020 know about the postmortem is conducted as per the procedure provided under Karnataka (Investigation of Unnatural Death and Conduct of Inquest) Rules, 2004. PW.20 has further deposed that if a person consumes alcohol before his death, traces of the alcohol cannot be found in the blood. He has also deposed that the deceased had not consumed any food prior to 2 to 3 hours of his death. Further, PW.20 has also admitted that Mos 1 and 2 were not shown to him by the I.O. nor is opinion was sought during the course of the investigation.
31. The prosecution has also examined PW.21 Manjunatha B.H. the then Head constable of D.J. police station. He has deposed that on 29.11.2019 as per the directions of the Investigating Officer, he has written the seizure mahazar Ex.P.4 in the presence of CW.5 and C.W. 6- 23 SC No.514/2020 the panchas and he has attested signature to Ex.P.4 at Ex.P. 4(c).
32. The prosecution has also examined PW.22-Ajay Sarathi, the Investigating officer who has partly conducted the investigation. PW.22 has deposed that on 22.11.2019, as the Sub Inspector of the police station was on leave, he was in charge of the police station and he took up the further investigation of the case from CW.25 and on the same day at 2.00 am he arrested the accused by following due procedure and he has issued notice to the panchas CW.3 and 4 and on the same day he prepared the spot mahazar as per Ex.P.5 at the spot. Further he has also deposed that the accused had shown the dead body of the deceased which was kept in a gunny bag in the kitchen of his house and he had seen the dead body which bore injuries on the head, forehead face and neck and he had 24 SC No.514/2020 sent the body to Dr.Ambedkar Medical college. Further he has stated that he has conducted the spot mahazar at the spot i.e., the house of the accused, by seizing the blood stained cotton balls, lamp which were separated in three pieces, unstained cotton ball and on 23.11.2019 he has produced the accused before the Court and obtained the police custody of the accused and on 24.11.2019 he has issued notice to CW.7 to 9 took them to the mortuary of Dr. Ambedkar Medical College and hospital and in their presence he has conducted the inquest mahazar as per Ex.P.17, between 8 am to 10 am and issued notice to Panchas CW.7 to 9 and recorded the statement of the relatives of the deceased i.e, CW.10 and 11 and he has also recorded the statement of CW.12 and 13 and directed CW.18 to hand over the body of the deceased to his relatives, after the conclusion of the postmortem and after 25 SC No.514/2020 handing the dead body of the deceased CW.18 has submitted a report to him as per Ex.P. 18. PW.22 has also deposed that the confession statement of the accused under section 164 of the Criminal Procedure Code was recorded by the learned Magistrate after a requisition was submitted by him to the Court.
33. The prosecution has also examined PW.23 Keshava Murthy who has conducted further investigation and filed the charge sheet against the accused. According to him, on 27.11.2019 after he took charge of the case along with the case documents from PW.22, he produced the accused before the Court for recording the statement under section 164 of the Cr.PC and as per voluntary statement given by the accused as per Ex.P.20 he has issued notice to the panchas as per Ex.P.21 and the accused took him and panchas to the Rajakaluve situated at HBR layout and had 26 SC No.514/2020 shown the place where he had hidden the materials in a bag and accordingly, he has prepared the panchanama Ex.P.4 at the spot between 11.00 am to 12.00 pm and taken the photographs of the spot as per Ex.P.22 and P.23. PW.23 has also deposed that the accused had handed over the bag which contained knife, beer bottle pieces, blue coloured partially burnt top belonging to a female, a yellow coloured partially burnt top belonging to a female, a pink and green coloured partially burnt nighty belonging to a female, red coloured partially burnt cloth used for wiping, white coloured partially burnt cloth used for wiping, green coloured blood stained bag bearing the words 'Nandini palace' i.e., MO.1 and 6 to 12 respectively. Further he has also deposed that he has recorded the statement of CW.14 to 16 and the articles which were handed over from the doctor and the six articles i.e., clothes were sent to FSL in 27 SC No.514/2020 a sealed cover and received by him and identified those articles as per MO.13 to 18. Further he has also deposed that on 10.2.2020 he has submitted a requisition to the Court to record the statement of CW.16-Shilpa-the wife of the accused, under section 164 of the Cr.PC and he has produced CW.14 before the Court for recording her statement. PW.23 has further deposed that after handing over the properties to FSL, as the investigation of the case was completed he has filed the charge sheet against the accused.
34. PW.23 during the course of his cross examination has admitted that he has again taken the police custody of the accused in order to recover the weapons and also to record the statement of the accused and also that he has not conducted any investigation about the mobile phones belonging to the accused or the deceased. 28
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35. The prosecution has examined PW.24 the learned Senior Civil Judge, who has recorded the confession statement of the accused under section 164 of the Criminal Procedure Code . PW.24 has deposed that on 25.11.2019 she received a requisition of D.J.Halli police station and the accused was also present along with the IO. She had enquried the accused on that day and he had informed about his details and that the accused had also confessed before her that he himself had surrendered before the police admitting about having committed the offence and has stated that he wanted to give confession statement voluntarily and that he was not threatened or forced by anybody to give his confession statement. PW.24 has recorded the statement by following the procedure as per the Rules of Criminal Practice and she sent the accused to the judicial custody for 24 hours for reflection before 29 SC No.514/2020 recording his confession statement and she directed the police to produce the accused on 27.11.2019 after reflection and accordingly on 27.11.2019, the accused was produced before her through the Investigating officer and again on enquiring him, the accused informed her that even after reflection he wishes to give his confession out of free will and he did not wish to be an approver and after complying all the due procedure as per the Criminal Rules of Procedure, she has recorded the confession statement of the accused between 1.15 pm to 2.00 pm and after recording the confession statement, the accused has affixed his signature to the confession statement and she had enclosed the confession statement-Ex.P.27 along with the Certificate as per Ex.P.28 under section 164 (3) of Criminal Procedure Code and handed over the custody of the accused to the Investigating officer. She has also 30 SC No.514/2020 produced the order sheet which is marked as Ex.P.29 wherein she has mentioned about the procedure followed by her while recording the confession statement.
36. The prosecution has also examined PW.25 Srividya- the Senior Scientific Officer of FSL, who has deposed that on 12.02.2020, the police constable of D.J. Halli police station has handed over 18 articles to the reception counter of the FSL office, which were registered in BS No.148/2020 and she has opened all the sealed articles and conducted chemical and serological examination on those articles and on analysis presence of blood stains were detected on item nos. 1 to 3 and 5 to 17, but, the blood stains was not detected on item no.4 i.e., the sample cotton and the blood stains detected in item nos. 1 to 3, 7 to 17 belonged to 'O' blood group. Further she has also deposed that the blood stains on item nos. 5 and 6 were 31 SC No.514/2020 not sufficient to determine the blood group and the blood sample sent in item no.18 could not be determined as the sample was disintegrated and she has issued the report as per Ex.P.31.
37. The case of the prosecution is that on 23.11.2019 in between 12.30 midnight and 1.00 am, which C.W.18/P.W 18 was in charge of the police station the accused had voluntarily surrendered before the police station and gave his statement as per Ex.P.1, stating that he and the deceased were together working as drivers at Lakshmi Hyundai Car showroom, situated at Kempapura and they had developed friendship and the deceased being a bachelor used to come to the house of the accused for having his meals. The accused has also confessed before PW.18 that about one and half years ago, he had left his employment at Lakshmi Hyundai car showroom and had 32 SC No.514/2020 purchased an autorickshaw, which he was driving for his livelihood and that since about 2-3 years he had an affair with a lady a resident of Ashok Nagar, which the deceased Ambarish came to know and about 8 months prior to the alleged incident, the deceased Ambarish had come to his house and had disclosed about the accused's affair with another lady to the wife of the accused I.e., Smt.Shilpa- P.W.2, due to which, P.W.2 used to quarrel with the accused and the relationship between them became strained and the deceased by taking advantage of the strained relationship, used to talk with his wife continuously over the phone and according to the accused, the deceased used to brain wash his wife about the relationship of the accused with another lady, so as to create a rift among them. The accused had further disclosed that as he was holding a grudge against the deceased, he had planned to 33 SC No.514/2020 do away with the life of the deceased and he was waiting for an opportunity and finally on 22.11.2019 at about 5 pm, when the deceased Ambarish was having drinks at Reddy Bar situated near the Mangala Lakshmi Temple, Shampura Main Road, the accused by enticing him, brought him to his house and asked PW.15-Emmanuel a neighbour to get beer and gave it to Ambarish and at about 8.30 pm, the deceased Ambarish in a drunken stupor started abusing the accused in filthy language, due to which, the accused got enraged and he assaulted the deceased with a beer bottle on the forehead of Ambarish due to which he fell down. The accused also disclosed that his wife PW.2-Shilpa restrained him from assaulting the deceased, but he with an intention to murder the deceased, took a lamp stand and assaulted him on his head and face, due to which, the deceased started bleeding and seeing the same the 34 SC No.514/2020 accused took a knife and stabbed on the neck of the deceased. Later, in order to dispose off the body of the deceased Ambarish, the accused put the body in a plastic bag and kept it in the kitchen of their house, but on seeing that his clothes were stained with blood, he went to the terrace of his house and put fire to his clothes, the knife used for the commission of the offence, the beer bottle pieces, and put the shoes and the purse of the deceased and threw them near a canal situated at HBR Layout and came back home and sent his wife Shilpa to her parents house situated at Doddanna Nagar and then came to the police station and confessed about murdering the deceased Ambarish. In his statement at Ex.P.1 the accused had also confessed that if he is taken to the spot, he would show the place where the body of the deceased Ambarish 35 SC No.514/2020 was kept along with the weapons i.e, beer bottle piece, lamp stand and knife and the burnt clothes.
38. After the statement of the accused was recorded, PW.18 Govinda Naik the then Head constable of D.J.Halli police station, informed about it to his higher authorities and the FIR was registered against the accused and the investigation was set into motion. The Investigating Officer/ C.W.26/PW.22 Sri.Ajay Sarathi- the then Police Inspector of K.G.Halli police station took up the further investigation from PW.18 and on the same night he arrested the accused by following the due procedure and visited the spot and conducted the spot mahazar Ex.P.5 in the presence of the panchas PW.4 and PW.5 and at the time of conducting the spot mahazar, the accused showed the dead body which was covered in a gunny bag and kept in the kitchen of his house to PW.22 and opening the bag, PW.22 found a male 36 SC No.514/2020 body with injuries on his head, forehead, neck and face and he sent the dead body to Dr.Ambedkar Medical College and also collected the material objects from the spot. Later the accused was produced before the Court and police custody was obtained. Inquest mahazar of the deceased was conducted. Statement of the witnesses were recorded. The accused was also produced before the Court to record his confession statement under section 164 of the Cr.P.C. and after completing the investigation charge sheet was filed against the accused.
39. The main points for consideration in this case are (1) Whether the death of the victim was homicidal or natural; (2) Whether the accused and the victim were known to each other and the motive for commission of the offence; and (3) Whether the accused has committed the 37 SC No.514/2020 alleged offences which resulted in the death of the deceased and tried to destroy the evidence.
40. In order to prove whether the death of the deceased Ambarish was homicidal or natural, the prosecution has relied upon the evidence of PW.20- Dr.B.M.Nagaraj-the doctor who has conducted the postmortem; the inquest mahazar witness, the Inquest Mahazar-Ex.P.6 and the Postmortem report Ex.P.15. In Ex.P.6-the inquest mahazar the following injuries are shown on the body of the deceased:-
"1) Lacerated wound on the neck measuring 5 inches.
2) Lacerated wound on jaws
3) Lacerated wound on left cheek measuring 2 inches
4) Lacerated wound on forehead
5) Lacerated wound on the head measuring 3 inches
6) Lacerated wound on the back of head
7) Lacerated wound on left cheek measuring ½ inch ad on left hand measuring ½ inches"38
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41. The inquest mahazar witness- P.W.8 has turned hostile to the case of the prosecution and has denied that the police have conducted the inquest mahazar on the dead body of the deceased in his presence and that he has seen the injuries on the body of the deceased Ambarish. PW.9 and 10 the other independent inquest mahazar witnesses though have denied about their knowledge of the contents of Ex.P.6 they have not denied that the Inquest panchanama Ex.P.6 was prepared in their presence, on the dead body of the deceased and all of them identified their signatures in the inquest mahazar - Ex.P.6.
42. The father of the deceased PW.11- Nagappa has also stated that he had seen the dead body of his son at Dr. B.R.Ambedkar Hospital and that he had received the dead body of his son for cremation. The Inquest mahazar 39 SC No.514/2020 witnesses PW-8 to PW.10 have all deposed that they had seen the dead body of the deceased in the hospital though they have denied about the conduction of the Inquest Mahazar in their presence. Hence, it can be held that the inquest mahazar-ExP.6 was conducted on the dead body of Ambarish at Dr.B.R.Ambedkar Hospital.
43. The prosecution has also examined PW.20-Dr. B.M.Nagaraj who has conducted the postmortem on the dead body and PW.20 has noticed the following external injures on the body of the deceased:-
"1) Cut Throat injury present over middle 1/3rd of outer and lateral aspect front of neck measuring 12cm X 5cm X Trachea depth, extending from the center of the neck and situated 7cms below the symphysis menti to left side of the neck and situated 9 cms below the left mastoid process. Margins of the wound are clean cut.
2)A horizontally placed incised looking lacerated wound present over the outer aspect of the left mandible region measuring 5 cm X 1cmx bone depth.40
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3) 5 cm below injury No.2 a horizontally placed incised wound present over the front of upper part of the neck just below the inferior border of left mandible region measuring5cm x 1cm x subcutaneous tissue depth.
4)A vertically placed incised wound present over the outer aspect of the left cheek region measuring 9cmx 3cm x bone depth.
5)An obliquely placed incised looking lacerated wound present over the outer aspect of left side of the forehead measuring 9 cm x 2.5 cm x skull bone depth.
6)5cm below injury No.5, an obliquely placed incised looking lacerated wound present over outer aspect of left side forehead measuring 7.5 cm x 1cm x bone depth.
7)2cm below injury No.6, an obliquely placed incised looking lacerated wound present over the outer aspect of left side of forehead measuring 5 cm x 0.5 cm x bone depth.
8)Horizontally placed incised wound present over center of top of the head measuring 8cm x2cm x bone depth.
9)Boggy swelling present over the center of back of head measuring 7 cm x 4 cm.
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10)An obliquely placed incised wound present over outer aspect of left angle of mouth measuring 2 cm x 1cm x muscle tissue deep.
11)An obliquely placed incised wound present over the outer aspect of left side of nostril measuring 2cm x 1 cm x muscle tissue deep".
44. PW.20 has also found the following injuries on dissection of the body:-
1) Scalp : There is diffuse extravasation of blood over left fronto-parictal region.
2) Skull: Obliquely placed fissure fracture present over left frontal bone for a length of 5 cm. Horizontally placed fissure fracture present over left anterior cranial fossa for a length of 6cm. Blood extravasated at the fractures sites.
3) Membranes:Lacerated underlying the injury described.
4)Brain:Covered by Sub dural and Sub arachnoid hemorrhages.
5) Trachea:Injury described.
6)Lungs and the heart: Intact and pale, the chambers are empty.
7) Stomach: Contains 100 ml of brown clolour fluid. No abnormality detected in the odour, mucosa - pale.42
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8) Intestine, liver, spleen and kidneys were intact and pale"
45. PW.20 has opined the cause of death as 'Death was due to shock and hemorrhage consequent to multiple homicidal injuries sustained'. In the P.M. Report - Ex.P.15 he has also stated that the injuries shown in Ex.P.15 could be caused by MO.1 and MO.2. The evidence led by PW.20 goes to show that the death of the deceased Ambarish was caused due to multiple injuries sustained and it is clearly evident that the death of the deceased was due to external force. The injuries on the body coupled with medical evidence proves that the death of the deceased was homicidal and the prosecution has placed materials that the death of the deceased Ambarish was due to shock and hemorrhage consequent to multiple homicidal injuries 43 SC No.514/2020 sustained. Hence, it can be held that the death of the deceased was homicidal.
46. The next point for consideration is to see whether the deceased and the accused were acquainted with each other and whether there was any motive for the accused to have committed the alleged offence.
47. The prosecution has stated that the deceased and the accused were known to each other as they were working in the same organization. This fact has been admitted by PW.2-the wife of the accused, who has clearly stated that previously, the accused and the deceased were working as drivers at Lakshmi Hyundai Car show room due to which they got acquainted and the deceased used to come to their house oftenly, to have meals. That the accused and the deceased were known to each other is not disputed by the accused. Hence, the point for 44 SC No.514/2020 consideration is to see whether as on the date of the alleged incident, that too during the occurrence of the alleged incident the deceased was last found in the company and house of the accused. The accused while recording the statement as Ex.P.1 has clearly stated that on 22.11.2019 at 5 pm he saw the deceased consuming alcohol at Reddy Bar and Restaurant, situated near his house and he enticed the deceased to come to his house to consume alcohol. In respect of this theory, the prosecution has examined PW.14-the supplier of the Bar who has turned hostile to the prosecution case and has denied that the deceased and the accused were regular customers of his Bar or that on 22.11.2019 at 5.00 pm, first Ambarish had come to the Bar and later the accused had joined him, and during that time, a tussle had taken place between them and the accused by consoling the deceased 45 SC No.514/2020 had taken him outside the bar. Even PW.15 Emmanuel who was asked by the accused to get a can of beer to his house, has also denied that he had bought a can of beer to the house of the accused and handed over the same to the accused.
48. The prosecution has also examined PW.16 Basavanagouda Patil-an independent witness. He has clearly admitted during the course of his cross- examination by the learned Public Prosecutor, that he came to know that on 22.11.2019, the accused had taken the deceased to his house from a Bar situated at Shampura and further that the accused had given beer to the deceased at his house and assaulted the deceased with a beer bottle on his forehead; with a lamp stand on his face and with a knife on his neck and committed his murder. Though the rest of the evidences are denied by him, he 46 SC No.514/2020 has clearly admitted that he came to know about the incident and that the inquest was also conducted in his presence on the body of the deceased. Further he has also admitted that he came to know that, in order to destroy the evidence, the accused had put the body of the deceased in a bag and washed the clothes of the deceased and he had put fire to the beer bottle piece, knife and also blood stained clothes on the terrace of his house. This witness PW.16 was not subjected to cross examination by the accused with respect to the evidence given by him and no enmity has been shown by the accused with PW.16, in order for the Court to not believe his version.
49. PW.16 has been cross examined by the accused. It was only suggested to him that his statement was recorded in the police station. Further he has also clearly admitted that his statement was recorded by the Police and his 47 SC No.514/2020 signature was also taken. The evidence of PW.16 clearly goes to show that the deceased was found in the company of the accused in the restaurant on the date of the incident and the evidence of PW.6 clearly goes to show that the accused had got the deceased to his house from the bar and that the quarrel had taken place between the accused and the deceased in the house of the accused, that too, in the presence of his wife-PW.2.
50. The most important witness in this case is the wife of the accused Smt.Shilpa who is examined as PW.2. In her evidence, PW.2 has admitted that the accused-her husband and the deceased were working together at Laxmi Hyundai Car showroom and they had become close friends and the deceased used to come to their home for meals. The evidence of PW.2 clearly goes to show her presence in her house as on the date of the alleged incident and even her 48 SC No.514/2020 presence at her house, that too, during the night hours is under natural circumstances and her evidence clearly demonstrates that she has partially witnessed the incident, when husband had assaulted the deceased with beer bottle-MO.1 and it has been clearly stated by her even before the Court. PW.2 being the wife of the accused, there was no necessity for her to have deposed about the act of the accused in committing the offence. It is not the case of the accused that he was in inimical terms with his wife- PW.2 or that during the course of the examination of PW.2, their relationship was strained. The evidence of PW.2 clearly goes to show about the natural behaviour of a person, that too being the wife of the accused, in leaving the house and going to her mother's house immediately after the incident when the accused went to the police station to confess about his crime.
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51. The learned counsel for the accused has argued that the accused and his wife PW.2 were forced by the police to confess about having committed the offence and that she was pressurized to record her statement u/s.164 of the Cr.PC before the learned Magistrate, failing which, they would implicate her also as a co-accused in this case and only by thinking about the future of their two daughters, PW.2 had agreed to record her statement under section- 164 or Cr.PC before the learned Magistrate. PW.2 Shilpa- the wife of the accused was examined before the Court. During the course of her cross examination by the learned Public Prosecutor, PW.2 has clearly admitted that while her statement as per Ex.P.2 was recorded, she was neither pressurized nor compelled to give the statement and that she had given the statement voluntarily. Further, she has also admitted that the deceased Ambarish had told her 50 SC No.514/2020 that her husband-the accused was having an illicit relationship with another woman and she had informed about it to her husband about four months ago, but both her husband and the deceased continued to be on good terms with each other. PW.2 Shilpa has clearly admitted that while her husband and the deceased were having drinks in their house and quarreling with each other, she was working in the kitchen and when her husband-the accused had hit Ambarish with a beer bottle, she had requested him to let go of Ambarish, but her husband beat her and locked her in the room and about 10-15 minutes later when he opened the door, she saw Ambarish fallen on the floor in a pool of blood. This evidence of PW.2 was not subjected to cross examination by the accused and has virtually remained unchallenged.
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52. The learned counsel for the accused has also argued that the statement of PW.2 under section 164 of the Cr.P.C as per Ex.P.2 was recorded after a period of 3 months of the incident i.e., though the alleged incident has taken place on the intervening night of 22.11.2019 and 23.11.2019, the statement Ex.P.2 was recorded on 10.02.2020 which goes to show that PW.2 was compelled to give her statement. It is also argued that the IO has not shown why there was a necessity to record the statement of PW.2 u/s.164 of the Cr.P.C. when her statement under section 161 of the Cr.P.C C was already recorded on 30.11.2019 as per Ex.P.3 and this itself goes to show that in order to falsely implicate the accused, the statement of PW.2 at Ex.P.2 was recorded.
53. The decisions relied upon by the accused in (1) 2010(6) SCC 736 (Baij Nath Sah Vs. State of Bihar (2) 52 SC No.514/2020 Crl.Appeal No.642/2018 (Siva Vs. State by Inspector of Police) Madras High Court and (3) 2022(0) Supreme (Kar) 443 (Rangaswamy Vs. State of Karnataka) are with respect to the statement made by PW.2-Shilpa under section 164 of Cr.P.C. as per Ex.P.2 before the learned Magistrate. She has admitted that she had agreed to be a witness in this case and had given her statement as per Ex.P.2 which bears her signature at Ex.P. 2(a) to (c) and she has also before the Court that she has given her statement under section 164 of the Criminal Procedure Code voluntarily and that she knows the contents of Ex.P.2. Not even a single cross examination was led to PW.2 to disbelieve her version.
54. The learned Public Prosecutor on the other hand has argued that the deceased and accused were known to each other and they were working in the same organization 53 SC No.514/2020 and on the date of the alleged incident, the deceased was found in the company of the accused in a restaurant and the accused had brought the deceased to his house from the restaurant. The learned Public Prosecutor has further argued that a quarrel took place between the accused and the deceased in the house of the accused, that too, in the presence of the wife of the accused. The said quarrel was due to the discussion about the illicit relationship of the accused with another woman. The learned Public Prosecutor has further argued that the accused with an intention to take revenge against the deceased had intentionally killed Ambarish with the weapons and after committing murder of the deceased, had straightaway gone to the jurisdictional police station and had surrendered before the police. The accused had immediately gone to the police station within a short span 54 SC No.514/2020 of time, which gives credence to the prosecution theory and hence it can be held that the accused and the deceased were acquainted with each other.
55. The learned Public Prosecutor has further argued that at the time of the occurrence of the alleged incident, the wife of the accused was present in their house and she has witnessed the incident. The learned Public Prosecutor has further submitted that after committing the murder, the accused had attempted to destroy the weapons and blood stained clothes by putting them at fire on the terrace of his house and the half burnt clothes and knife alleged to have been used in the commission of the offence were discovered on the basis of the voluntary statement given by the accused himself, after he had gone to the police station and during the course of investigation and that the 55 SC No.514/2020 blood stains were also found at the place of the incident. All these have not been disputed by the accused.
56. Admittedly PW.2 is the sole eye witness to the incident and as per her statement itself, she had gone to her parents house immediately after the incident. The Investigating Officer though had recorded the statement of PW.2 on 30.11.2019 under section 161 of the Cr.P.C. again she being the sole eye witness in order to corroborate the previous version given by her, again her statement under section 164 of the Cr.P.C as per Ex.P.3 was also recorded.
57. In this case, the material witness PW.2-the wife of the accused has deposed about the act of the accused in the commission of the crime and she being wife of the accused there was no necessity for her to have stated against her husband either before the Court, during the course of recording her evidence or while recording her 56 SC No.514/2020 statement under section 164 of the Cr.PC as found in Ex.P.2. Hence, the citations relied upon by the accused mention about in respect of circumstantial evidences are not relevant to the present facts.
58. PW.2 in her examination in chief has clearly stated that she and her husband had gone outside and when they had returned home, they had seen the body of the deceased Ambarish fallen inside the home. During the course of her cross examination, she has clearly admitted that her husband had assaulted Ambarish with a beer bottle and that she had partially witnessed the accused assaulting Ambarish with a beer bottle and then she was locked up in the room and after 10-15 minutes when the accused opened the door, she has seen Ambarish fallen in a pool of blood. Further she had also admitted that generally when she and her husband used to go out of 57 SC No.514/2020 their house, they used to lock the house and go and even on the date of the incident though she and her husband had gone out for purchase, they had locked their house. The only cross examination led to PW.2 was that the deceased Ambarish had a spare key of their house. Not even single evidence has been led by the accused to explain regarding the presence of the dead body of a person within the four corners of the walls of his house and it is the accused himself who can explain about the recovery of the dead body in his home, that too, at night hours.
59. The learned counsel for the accused has argued that the prosecution has failed to prove the motive on the part of the accused to commit murder of the deceased Ambarish. The prosecution theory is that after getting acquainted with the deceased, the deceased had disclosed 58 SC No.514/2020 about the accused's illicit relationship with a lady by name Ammu and the deceased in turn had told PW.2 Shilpa the wife of the accused about the said relationship, due to which, the marital relationship between the accused and PW.2 became strained and the deceased by using advantage of the same, started getting intimate with PW.2 and both of them used to chat over phone regularly and this was the cause for the accused committing the drastic act of murdering the deceased. The IO admittedly has not conducted any investigation on the alleged relationship of the accused with the said lady Ammu. It is only in the initial statement given by the accused himself, that this fact was elicited. The only witness supporting the case of the prosecution i.e., PW.2 who is the wife of the accused, during her evidence before the Court has admitted that the deceased Ambarish had told her about her husband-the 59 SC No.514/2020 accused having an illicit relationship with another woman and she had informed the same to the accused about four months ago.
60. In a case based on the circumstantial evidence, motive assumes great significance. It is not as if, motive alone becomes the crucial line in the case to be established by the prosecution and in its absence, the case of the prosecution must be discarded, but at the same time, complete absence of motive assumes a difficult complexion and such absence definitely weighs in favour of the accused.
61. The facts and circumstances of the case, the essence of the evidence available coupled with the manner in which it was examined, gives a doubt in the case of circumstantial evidence. To prove the guilty mind of an accused, the motive of the person plays an important role. 60
SC No.514/2020 Motive is considered as a key and valid defence by the Court in support of the prosecution side. Motive is not considered as a legal component to decide whether the accused is guilty. It will only be relevant in deciding whether the accused acted or committed the crime with mens rea or to see whether an individual has committed the act recklessly, knowingly or purposefully.
62. The Hon'ble Supreme Court in Suresh Chandra Batri Vs. State of Bihar (1995 Supp (1) SCC 80) has held that "If motive is proved that would supply a link in the chain of circumstantial evidence, but the absence thereof cannot be a ground to reject the prosecution case".
63. Even in the decision reported in State of U.P. Vs. Kishanpal (2008) 16 SCC 73, the Hon'ble Supreme Court has held that "The motive is a thing which is primarily known to the accused themselves and it is not possible of 61 SC No.514/2020 the prosecution to explain what actually promoted or excited them to commit the particular crime". Further, it is also settled law that the motive loses all importance in a case where direct evidence of eye witnesses is available, because even if there may be a very strong motive for the accused person to commit a particular crime, he cannot be convicted if the evidence of the eye witnesses is not convincing. In the same way, even if there may not be an apparent motive, but if the evidence of the eye witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.
64. The evidence of PW.2 the wife of the accused goes to prove that due to the disclosure of his illicit relationship with another woman, by the deceased to PW.2 itself, was the reason for the accused to bear a grudge against the deceased and after waiting for an opportunity, the accused 62 SC No.514/2020 brought the deceased to his house and by making him to consume alcohol, had picked up quarrel with him and then assaulted him with the knife-MO.1, Lamp stand-MO.2 and beer bottle MO.6. The inflicting of injuries with the use of the different weapons causing multiple injuries which resulted in the death of the deceased itself, goes to prove about the hatred/enmity the accused had towards the deceased. It is not the defence of the accused that in the heat of the moment or self defence or due to sudden provocation he has committed the act. The act of assaulting the deceased continuously by using different weapons, goes to show the intention of the accused to commit the drastic act.
65. The circumstances of the theory of 'last seen together' does not necessarily leads to the inference about the fact that it was the accused who committed the crime. 63
SC No.514/2020 The connectivity between the accused and the crime must be something more establishing. It has been consistently laid down by the Hon'ble Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with inconvenience of accused or the guilt of any other person. It is a well settled principle that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weaknesses or the defence. This is a trite law and no decision has taken a contrary view. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
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66. The decision relied upon by the accused reported in Nandu Singh Vs. State of MP; Crl. Appeal No.285/2022 , regarding the last seen theory, is not applicable to the facts of this case as the case of the prosecution is not purely relied on the facts that the accused and the deceased were last seen together in close proximity and that the guilt of the accused can be linked to the last seen theory.
67. The Hon'ble Supreme Court in case of Hanumant Govind Nargundkar and another Vs. State of Madhya Pradesh (AIR 1952 SC 343) has held as under:-
" Suspicion however grave it may be cannot take the place of proof and suspicion no matter how strong, cannot and must not be permitted to take place of poof and has further it is held that the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and the Court must maintain the vital distance between mere conjectures and sure 65 SC No.514/2020 conclusions to be arrived at, on the touch-stone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".
68. The learned counsel for the accused has argued that there are serious lapses in the investigation by the Investigating Officer-PW.22 and PW.23.
69. CW.27/PW.23-the Investigating Officer who took up the further investigation from PW.22 has also deposed that he had produced the accused for recording the statement u/s 164 of the Cr.PC on the same day. Further he had deposed about the voluntary statement given by the 66 SC No.514/2020 accused. The voluntary statement of the accused can be looked into only with respect to the recovery under section 27 of the Cr.P.C. PW.23 has also deposed that the accused had taken him along with the panchas near the Raj Kaluve situated at HBR layout where the accused had kept a bag containing MO.1 knife, beer bottle pieces MO.6, a blue coloured partially burnt clothes- MO.7, a partially burnt pink and green coloured nightly MO.9, red coloured partially burnt cloth MO.10, white colour partially burnt MO.11, a green coloured bag bearing the name 'Nandini Palace' MO.12, and the white coloured shirt MO.13, bloodstains brown coloured banian MO.14, blood stained jeans pant MO.15, blood stained white and blue coloured underwear MO.16, blood stained brown and black and brown colour belt MO.17 and the blood samples MO.18. He has also deposed about recording the statement of PW.2- 67 SC No.514/2020 Shilpa the wife of the accused under section 164 of Cr.P.C and also that the seized articles were sent to FSL.
70. During the course of cross examination of PW.22 and PW.23, the Investigating Officer it was elicited that PW.22 though he had initiated the investigation, neither he nor did PW.18-the SHO had recorded the voluntary statement of the accused, but only the statement of the accused as per Ex.P.1 was recorded. According to PW.22, he had taken police custody of the accused in order to know about any other reason for the accused to have committed the crime and to draw the inquest mahazar. PW.22 has also stated that he did not visit the second spot as stated by the accused, because all the materials were found in the first spot itself. PW.22 has also stated that he has not prepared the sketch of the scene of occurrence when he had initially visited the spot. PW.23-the 68 SC No.514/2020 Investigating Officer who had taken up the further investigation has deposed that as he was not satisfied with the investigation in respect of the police custody sought for by CW.26/PW.22, so he had taken the further police custody of the accused in order to recover the weapon and clothes and for recording the further statement of the accused.
71. The learned counsel for the accused by relying upon the decision reported in 2022 (0) Supreme (SC) 569 (Shaja @ Shaja Ismail Mohd. Shaikh Vs. State of Maharashtra and (2022) 9 SCC 417 (Muruli & Another Vs. State of Rajasthan) has argued that the IO/PW.22 though has admitted that the mobile phone of the victim was seized from the spot while drawing the mahazar, he has admitted that he has not subjected the mobile phone to PF nor taken the photograph of the mobile. According to 69 SC No.514/2020 him, as the mobile phone was shattered, he had not subjected it to PF nor produced it before the Court, though he has further admitted that he did not check the mobile phone to see whether it was connected to the deceased or that it was being used by the deceased. According to him, the accused had told him that the said mobile was used by the deceased, hence he has taken it as gospel truth without conducting any investigation in that regard. Admittedly, this lapse on the part of the IO is fatal, the non-seizing of the mobile phone, not verifying about the mobile phone, and not collecting the tower location details of the mobile phone connection or collecting the details of the SIM installed in the mobile are definitely serious lapses on the part of the Investigating Officer. But, as discussed already, the lapse on the part of the Investigating Officer cannot be 70 SC No.514/2020 taken benefit by the accused, when the other mitigating factors goes against him.
72. The Investigating officer-PW.22 had visited the house of the accused after registering the FIR and the spot mahazar- Ex.P.5 was conducted in the house of the accused. The evidence of PW.4 goes to prove that the police had visited the house of the accused and the material objects were shown to him outside the house of the accused. Even the presence of PW.5 and 7 the spot mahazar witnesses are not disputed by the accused. PW.4, 5 and 7 though have turned hostile to state that they being the tenants of the accused are bound to support him. But, it is not denied by them that the police had not visited the spot nor conducted the panchanama- Ex.P.5 at the spot.
73. The accused in this case of his own free will and volition had made a statement as per Ex.P.1 to the SHO of 71 SC No.514/2020 the police station, that too, at 12.30 am and he had also disclosed and that he had committed the murder of the deceased and he would lead them to the place where he had hidden the weapon, the place where the dead body was kept and the clothes which he had tried to destroy. Hence the IO., has called two independent witnesses PW.4 and 5 to the police station and taken their signature on Ex.P.1 and in the presence of the independent witnesses and the accused had expressed his willingness and free will and volition to point out the place where the weapon and articles used for the commission of the offence had been hidden.
74. The Hon'ble Supreme Court in a catena of decisions has held the defect in investigation by itself cannot be a ground for acquittal. The investigation is not a solitary area for judicial scrutiny in a criminal trial. Where there has 72 SC No.514/2020 been negligence on the part of the investigating officer, etc., which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence de-horse such lapses carefully to find out whether said evidence is reliable or not or to what extent it is reliable and as to whether such lapses are affecting the objects of definite truth. The conclusion of trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there are any lapses by the I.O. and whether due to such lapses any benefit can be given to the accused (2010 (9) SCC 567- C.Muniyappan Vs. State of Tamilnadu; (1974) 3 SCC 626 Chandrashekar Lakshman Vs. State of Maharashtra; (1999) 8 SCC 715 State of Karnataka Vs. K.Errappa; (2002) 3 SCC 57 73 SC No.514/2020 Altha Rakh K.Mansoor Vs. State of Gujarath; 2014 11 SCC 709 State of Tamil Nadu Vs. N.Suresh Ranjan.).
75. In case of defective investigation, the Court has to be circumvent in evaluating the evidence, but it would not be right in acquitting the accused persons solely on the defect, as it would be tantamount to playing into the hands of the Investigating Officer, if the investigation is designed defective.
76. An error, illegality or defective investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused. If the prosecution case is established by the evidence adduced, failure on the part of the Investigating Officer cannot render the case of the prosecution doubtful (AIR 2003 SC 2612 Union of India Vs. Prakash P Induja; AIR 2003 SC 1164 Amar Singh Vs. Balavindar Singh).
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77. Important witnesses may not necessarily lead to create doubt regarding the veracity of the prosecution case, unless the I.O. was specifically examined on this aspect, the defence cannot derive any advantage. In case there is delay in questioning, it is not the principle of universal application that the prosecution version becomes suspicion. It would depend on several facts during the cross examination the I.O. had offered explanation which is plausible, there would be no reason for any suspicion (AIR 2009 SC 2797 Abu Thakir and Ors Vs. State of Tamil Nadu represented by IPG, Madurai).
78. The evidence led by the prosecution that the accused had tried to destroy the evidence of the commission of the crime by trying to put fire to the material objects and seizure of the same by the Investigating Officer goes to prove that the accused after 75 SC No.514/2020 committing the crime had tried to destroy the same. No effective cross examination has been led by the accused, to prove how the material objects were found partially burnt, that too , in side his house and terrace of his house. There is no dispute that the house where the dead body was found belong to the accused and he is the best person to have explained about the presence of the dead body inside his house and the recovery of the material objects from the precincts of his house itself. Hence, the decisions relied upon by the accused regarding the recovery of the dead body at the instance of the accused are not applicable to the present facts of the case and the accused cannot take benefit of the said decisions.
79. The prosecution has examined PW.24- Smt.Uma K- the Learned Senior Civil Judge and JMFC who has recorded the confession statement of the accused as required under 76 SC No.514/2020 section 164 of the Criminal Procedure Code. The learned Magistrate has deposed before the Court about the procedure followed by her in recording the confession statement of the accused which was given voluntarily before her. She has deposed that she has recorded the confession statement of the accused, and after recording the confession statement she had enclosed her certificate as prescribed under section 164 (3) of Criminal Procedure Code. Though the learned Magistrate was subjected to cross examination, except for the minor discrepancies regarding the accused being produced before her and before the 11th Additional Chief Metropolitan Magistrate Court while in police custody, nothing worth to discredit that she has not followed due procedure, were elicited from her. PW.24 has denied that when the accused was produced before her, he was under coercion, duress and 77 SC No.514/2020 that he was threatened by the police that if he fails to give his confession statement, they would implicate his wife also in this case and even the suggestion put to PW.24 that the confession statement which was recorded by her was not given voluntarily, has been denied by her.
80. The learned counsel for the accused has vehemently argued regarding the admissibility of the confession under section 164 of the Criminal Procedure Code by relying upon the following citations:-
" 1) 2010 (6) SCC 736 (Baij Naith Sah Vs. State of Bihar)
2) Crl.A.No.642/2018 (Siva Vs. State by Inspector of Police)
3) 2022(O) Supreme Karnataka 443 (Rangaswamy Vs. State of Karnataka".
81. The accused has taken the defense that he was pressurized to confess about committing the murder and 78 SC No.514/2020 both he and his wife were threatened by the police that if he would not confess to the crime, his wife PW.2 would also be implicated as a co-accused and thinking about the future of their two daughters, PW.2 had agreed to give her statement against her husband- the accused and the accused had also voluntarily confessed before the police about the commission of the crime. The incident is alleged to have taken on the intervening night between 22.11.2019 and 24.11.2019. The presence of the deceased at the house of the accused, after taken from the bar and restaurant, during the evening hours of 22.11.2019 has been brought out in the evidences PW.2 and PW.16. It was during the midnight at 12.30 am, that the accused himself had gone to the police station and confessed about his crime. It is not the case of the accused, that the confession was made by the accused after some days, but it was immediately 79 SC No.514/2020 within a few hours after the incident that the accused had confessed about the crime, that too, by approaching the jurisdictional police voluntarily. The statement which was recorded immediately at 12.30 am goes to show that the accused had confessed, that he had enmity with the deceased regarding the disclosure by the deceased to PW.2 about his illicit relationship with another lady by name Ammu. The Investigating officer has not made efforts to cite the said Ammu as witness to this case, but the evidences disclose that due to the disclosure by the deceased regarding the illicit relationship of the accused with the said Ammu, it had created strained relationship between the accused and his wife PW.2 and the accused had enmity against the deceased for such disclosure and also in respect of the proximity grown between PW.2 and the deceased, due to their strained relationship. 80
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82. The confession of the accused within short span of time, clearly stating the reason for his committing the murder of the deceased without any delay, gives credence to the prosecution theory. The accused after committing the murder of the deceased had straight away gone to the jurisdictional police station and had voluntarily surrendered before the police. It is not the case of the accused, that after the commission of the murder someone has filed a complaint against him and on the basis of such complaint, the investigation was set into motion. It is on the basis of the confession statement which was given immediately by the accused before the jurisdictional police, the wheels of investigation started rolling and though there were major lapses on the part of the IO in conducting the investigation, it is clear from the oral and documentary evidences led, within a short span of 81 SC No.514/2020 time of committing the alleged offence, the accused had gone the police station and confessed about the commission of the murder of the deceased Ambarish before PW.18 the incharge of the police station, that too, in the night hours at 12.30 am.
83. The statement under section 164 of the Cr.P.C. of the eye witness PW.2-the wife of the accused was recorded as per Ex.P.2. Even during her evidence before the Court she has admitted that she has given the statement as per Ex.P.2 willingly and was not coerced or threatened to give the statement.
84. PW.2 the wife of the accused has also clearly admitted before the Court that she had given the statement Ex.P.2 under Sec. 164 of Cr.PC, voluntarily and that she was not coerced or threatened to give her statement. Further she had also clearly admitted that there 82 SC No.514/2020 was no pressure or compulsion on her to give her statement and when questioned by the learned Magistrate she had stated that she was making the statement voluntarily. Even the procedure followed by the learned Magistrate- PW.24 in recording the confession statement of the accused goes to show that the confession made was voluntarily in nature.
85. The learned counsel for the accused has argued before the Court to the effect that just because the accused has given a statement under section 164 of Cr.PC, it cannot be arrived at a conclusion that the charge is proved by the prosecution. On perusal of the above decisions relied upon by the learned counsel for the accused it can be seen that in all the judgments, the facts and circumstances of the cases relied upon by the accused are totally different from the case cited on hand. In addition to this, the Court is not 83 SC No.514/2020 aiming at a conclusion only on the statement recorded under section 164 of Cr.P.C of the accused, but this Court has already discussed about the other facts and circumstances, which has been proved by the prosecution including the evidence of the Investigating officer and the eye witness-PW.2 the wife of the accused in this case.
86. The learned counsel for the accused has relied upon the decisions reported in 1994 Crl.L.J. 3139 and AIR 1995 SC 980 and has argued that the accused and his wife PW.2 were threatened by the police to confess to the crime, which was not committed by the accused and only in order to safeguard their minor daughters, the accused had agreed to give his confession statement under duress. Similarly, it is also argued that PW.2 had also agreed to give her statement under section 164 of the Cr PC., as per Ex.P.2 in respect of the threat caused to her by the police. 84
SC No.514/2020 Admittedly, a confession is an admission of a person, making to state something against him. Therefore, it should be made in a surrounding which is free from suspicion, otherwise it violates the Constitution guaranteed under Article-20, that no person accused of an offence shall be compelled to be a witness himself. The evidence led by PW.24- the learned Magistrate clearly goes to show that prior to recording the confession statement of the accused, she has followed all the procedure and requirements, necessary for recording the confession statement of an accused.
87. In another decision relied upon by the accused reported in Crl.A.No.240/2022 Subramani Vs. State of Karnataka, it has been held that an extra judicial confession, if voluntary and made in a fit state of mind, can be relied upon by the Court, but the said confession will 85 SC No.514/2020 have to be proved like any other fact, the value of the evidence as to confession like any other evidence depends on the veracity of the witness. It is not open to any Court to start with the presumption of extra judicial confession, would be like evidence. It would be on the nature and circumstances, the time when the confession was made and the credibility of the witness to such a confession. Such a confession can be relied upon and conviction can be founded thereon, if the evidence of both the confessions comes from the mouth of the witnesses who used to be unbiased, not even remotely inimical to the accused and in respect to nothing is brought out, which will conclude that he or she may have motive for attributing unfruitful statement to the accused, the words spoken by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of 86 SC No.514/2020 the crime and nothing is committed by the witness, which may militate against it.
88. The Hon'ble Supreme Court in the case of R. Shaji Vs. State of Kerala [(2012) 4 SCC 266) has held as under:-
"Evidence given in a Court under oath has great sanctity, that is why the same is called substantial evidence. Statement given under sec.161 of the Criminal Procedure Code ,can be used only for the purpose of contradiction and the statement given under section 164 of Cr.PC can be used for both corroboration and contradiction. So far as the statement of witnesses recorded under section 164 of the Cr.PC is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immensely from prosecution by the witness u/s.164 of the Criminal Procedure Code. A proposition to the effect that if a statement of a witness is recorded under section 164 of the Cr.PC, his evidence should be discarded, is not at all warranted.87
SC No.514/2020 Sec.151 of the Evidence Act makes it clear that a statement recorded under section 164 of the Cr.PC can be relied upon for the purpose of corroborating the statement made by the witness in the Committal Court or even to contradict the same. During the investigation, the police officer may sometimes feel that it is expedient to record the statement of a witness under section 164 of the Cr PC. This usually happens when the witnesses to an entire case clearly connected to the accused.
The evidence of a witness whose statement is recorded under section 164 of the Cr PC cannot be treated as substantial evidence when the maker does not depose of such facts on oath during the trial. The recording of the statement under section 164 of the Cr PC plays a pivotal role in criminal trial. The purpose of contradiction between the evidence of a witness before the Court and the statement recorded u/s 164 of the Cr.P C is primarily to shake the credit of the witness and to put the Court on guard to scrutinize the evidence with great care".
89. In the case, though PW.2 has deposed before the Court that she has given her statement u/s 164 of the CrPC 88 SC No.514/2020 as per Ex.P.2 and admitted about it during the course of her examination in the Court, the defence has not effectively cross examined her in respect of Ex.P.2, hence the statement made as per Ex.P.2 cannot be discarded as it was not put to test under scrutiny by the accused. In Balak Ram Vs. State of UP (AIR 1974 SC 2165), the Hon'ble Supreme Court, has observed that "the evidence of witness cannot be discarded merely because his statement was recorded under section 164 of the Cr.PC. All that is required as a matter of caution is a careful analysis of the evidence".
90. On perusal of the records, it can be seen that it is not the only piece of evidence regarding the confession statement of the accused and recording of his statement under section 164 of the Cr.PC, which this Court relies upon, in order to prove the guilt of the accused. The other 89 SC No.514/2020 mitigating circumstances and evidences are also taken into consideration. On perusal of the statements-Ex.P.1 and Ex.P.2 i.e., the confession statement of the accused and especially the voluntary statement given by PW.2 wife of the accused, which has virtually remained unchallenged even in the Court, it can be seen that they were given voluntarily and faithfully made as an efficacious proof of guilt against to the accused and Ex.P.2 is an important piece of evidence, which can be held trustworthy. Hence, the decisions relied upon by the accused are also not helpful to the present circumstances of the case on hand.
91. The evidence of PW.2-the material witness that too, being the wife of the accused goes to prove the prosecution theory that, it is only the accused who can be attributed to the commission of the crime against the deceased. The evidence of PW.2 was not challenged or 90 SC No.514/2020 dispensed by the accused by way of effective cross examination. The words elicited from the mouth of PW.2 has remained virtually unchallenged and uncorroborated. In Madan Gopal Kakkada Vs.Naval Dube 1992 (3) SCC 204 and PIARE and Ors Vs State of Punjab 1977 (4) SCC 452, the Hon'ble Supreme Court has held that "Law does not require that the evidence of a extra judicial confession should in all cases be corroborated, it should be a rule of prudence not required that each and every circumstance mentioned in the confession must be separately and independently corroborated".
92. The evidence of the prosecution also goes to show that immediately on coming to know about the commission of the offence the I.O PW.22 had gone to the house of the accused and recovered the body of the deceased from the kitchen of the house of the accused and 91 SC No.514/2020 the weapons and clothes were recovered from the spot. The evidence is also clear that after committing the murder, the accused had attempted to destroy the weapon and the blood stained clothes by putting fire to it on the terrace of his house and the partially burnt MO.1 and the clothes from the house of the accused clearly goes to show that, at the instance of the accused himself, those material objects were seized. The conduct of wife of the accused PW.2 has to be taken into consideration, because in the normal course, immediately after the commission of the murder by her husband, she had gone to her mother's house, as she was scared. The learned counsel for the accused has argued that the statement of the witness PW.2 was recorded after a period of 3 months which creates a doubt regarding its genuity. Admittedly, after the incident the wife of the accused/PW.2 had gone to her mother's 92 SC No.514/2020 house and though the statement under section 161 of the Criminal Procedure Code was recorded on 30.11.2019, in view of the PW.2 herself having gone to the house of her parents, after the commission of the murder by her husband, it would have been difficult to record her statement and hence, her statement was recorded after three months of the incident.
93. The learned counsel for the accused has relied upon several in order to prove that the accused must be and not merely may be guilty before a Court can convict him, the conclusions of guilt arrived at must be sure conclusions and must not be based on grey conjections. The entire theory of circumstances under which the conclusion of guilt is to be drawn shall be fully established and should not be on any reasonable found ground for the conclusion consisting with the guilt of the accused. 93
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94. If the Police officer in charge of the police station having reason to suspect the commission of a cognizance offence, (Sec.157 of the Cr.PC) proceeds to the spot without preparation and sends report to the Magistrate concerned, that does not mean that his proceeding to the spot was not for investigation. It is not necessary that a formal registration of a case should have been made before proceeding to the spot. In order to bring the inquest proceedings within the ambit of investigation, it is enough that he has some information or reason to suspect the commission of a cognizable offence. Any steps taken by him pursuant to such information towards detection of said offence would be part of such investigation even though the formal registration of the FIR takes place only thereafter. Even if it is allowed after inquest report is recorded is not general, the proposal of universal 94 SC No.514/2020 application. The object of inquest is only to ascertain whether a person has died under unnatural circumstances and if so, would cause death. (AIR 2010 SC 3300- Shambu Das @ Bijay Das and anr. Vs. State of Assam; AIR 1964 SC 221 State of U.P. Vs. Bhagawanth Kishor Joshi; AIR 1976 SC 449- Maha Singh Vs. State (Delhi Administration) ) .
95. While considering the delay in FIR reaching the jurisdictional Magistrate, the Court has to bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and see if such ocular evidence is worth acceptance, the element of delay in registering the FIR or sending the FIR to the Magistrate by itself would not in any manner weaken the prosecution case, as reported in (AIR 1984 SC 1622 - Sharad Birdhi Chand Sarda Vs. State of Maharashtra), on which the accused has also relied upon, 95 SC No.514/2020 the Hon'ble Supreme Court has held that while dealing with circumstantial evidence, onus is on the prosecution to prove that the chain is complete and infirmity or lacuna in the prosecution cannot be kept by false defence or precedent condition before conviction can be passed on circumstantial evidence and must be fully established.
96. In the decision reported in Sharad Birdhi Chand Sarada Vs. State of Maharashtra on 17 th July 1984, the Hon'ble Supreme Court has held that the circumstantial evidence should be so complete and cogent, that the guilt of the accused shroud be unerringly established and any other inference, except the guilt of the accused can be drawn from the circumstances.
97. Admittedly, the Hon'ble Supreme Court has held that it is a settled position of law that the circumstances however strong cannot take the place of guilt of the 96 SC No.514/2020 accused and it has to be proved by the prosecution beyond reasonable doubt.
98. In this case, the citations relied upon by the accused are all with respect to the last seen theory and circumstantial evidence. It is also argued by the learned counsel for the accused that even before the investigation was commenced the I.O. had come to a conclusion that the accused is guilty and hence the entire investigation was biased, lethargic and not concluded in a fair manner. Admittedly, an admission of any person whether amounting to confession cannot be split-up and part of it used against any admission must be used either as a whole or not at all. In the circumstantial evidence, the rule as specifically applicable to such evidence must be borne in mind. In such cases, it is always a danger that conjecture or suspension may take the place of the legal proof. In 97 SC No.514/2020 cases where there are evidences about circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be fully established and all the facts should be consistent only with the hypotheses of the guilt of the accused.
99. Circumstantial evidence lays down the following five gold rules (panchasheela) specifically to be observed in the case of circumstantial evidence:-
(i) the facts alleged as to the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(ii) the burden of proof is always on the party who asserts existence of any fact which infers legal accountability;
(iii) in all cases whether or direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits;
(iv) in order to justify the inference of guilt, the exculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt and 98 SC No.514/2020
(v) if there is any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
100. The Hon'ble Supreme Court has also reiterated that there is no doubt that conviction can be based solely on circumstantial evidence, but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the Hon'ble Supreme Court as far as back in 1952 in the case of Hanumantha Govind Nargundkar and another Vs. State of Madhya Pradesh )AIR 1952 SC
343) , wherein the Hon'ble Supreme Court has observed as under:-
"It is well remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they 99 SC No.514/2020 should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused".
101. Therefore, while dealing with circumstantial evidence it is held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the Hon'ble Supreme Court, before conviction could be based on circumstantial evidence, must be fully established.
102. It is also a welled settled parameter of law that the chain of circumstances existing in a particular case should be unbreakable and should point out to only hypothesis and that is the hypothesis of the guilt of the 100 SC No.514/2020 accused and that there should be no alternative hypothesis available or probable in the case. The result of scientific examinations like serology, DNA analysis and finger print examination of the evidence collected from the crime scene in the form of blood scrapings, finger prints, exhibits, photographs, blood stains should point out to be hypothesis of the guilt against the accused. However, once a prosecution establishes the entire chain of circumstances together in a conglomerated whole, unnervingly pointing out that it was the accused alone who was the perpetrator of the crime and the manner of the happening of the incident could be known to him alone and within his special knowledge, recourse can be taken to Sec.106 of the Indian Evidence Act, 1872.
103. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the 101 SC No.514/2020 place of legal proof. The large distance between 'may be; true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basis and golden rules must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touch-stone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is 102 SC No.514/2020 not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.
104. It has been consistently laid down by the Hon'ble Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with innocent of accused or the guilt of any other person.
105. The prosecution has examined PW.20 the doctor who has conducted the postmortem on the body of the deceased and PW.25-the forensic expert who has conducted the serology chemical examination on the blood stains collected from the spot and the body of the deceased.
106. The learned counsel for the accused by relying upon the decisions reported in AIR 1999 SC 3318 (State 103 SC No.514/2020 by H.P Vs. Jai Lal and ors) and AIR 2010 SC 806 (Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. and ors) has argued that the expert evidence are not conclusive proof of evidence against the accused.
107. In the decision reported in AIR 1999 SC 3318 (State by H.P Vs. Jai Lal and ors), the Hon'ble Supreme Court has held as under:-
"17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.104
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18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions".
108. The report submitted by an expert does not go in evidence automatically. He has to be examined as a witness in Court and has to face cross examination. In this case, both PW.20 and PW.25- the expert witnesses have faced cross examination by the accused. They have document data in support of their opinion. PW.20- the doctor who has conducted the postmortem has clearly opined in Ex.P. 15 that the external injuries found on the 105 SC No.514/2020 body of the deceased can be caused if a person is assaulted with two or more weapons, which is also the case of the prosecution that the accused had assaulted the deceased with knife- MO.1, lamp stand- MO.2 and beer bottle-Mo.6. PW.20 has also clearly stated about the injury Nos.2, 5, 6, 7 and 9 can be caused by MO.2 and the remaining injuries shown in Ex.P.15 can be caused by MO.1.
109. PW.25- the scientific expert has also clearly stated that she has conduced the chemical and serological examination on the 18 sealed articles sent to her, which contained blood stained materials and clothes. She has also clearly admitted that the blood ground detected in the item Nos.1 to 3 and 15 and 17 were of human origin and belong to 'O' blood group and she has given her opinion in Ex.P.31-the report. PW.25 has faced the cross examination 106 SC No.514/2020 of the accused effectively. No cross examination has been led to both PW.20 and PW.25 that they have conducted the examination in biased and unfair manner. The evidence led by both the experts are reliable and can certainly be looked upon to corroborate with the other oral and documentary evidence led by the prosecution. Hence, the decisions relied upon by the accused are not applicable to the present facts and circumstances of this case.
110. The oral and documentary evidence led by the prosecution, particularly the evidence of PW.2 the wife of the accused which has not been shaken by effective cross examination, gives credence to the prosecution theory that it is the accused only, who could have committed the offence of committing murder of the deceased Ambarish and even it is the accused only who could have explained about the presence of the dead body in his house during 107 SC No.514/2020 the night hours and how the dead body came to be found within the four walls of his house. The accused though was given an opportunity to explain about the same during the course of recording his statement under section 313 of the Criminal Procedure Code, he has failed to do so. Admittedly, the burden is on the prosecution to prove its case beyond all reasonable doubt, but in the case of circumstantial evidence, the onus of proof is also on the accused to contradict and explain regarding the material evidences which are against him and which he alone is the best person to explain. The failure by the accused even create a doubt in the mind of the Court regarding the presence of the dead body of the deceased in his house, corroborated with the evidence of his wife PW.2, gives clear evidence to the case of the prosecution regarding the guilt 108 SC No.514/2020 of the accused, which the prosecution has proved beyond all reasonable doubt.
111. The accused has relied upon several citations and I have carefully gone through the principles laid down in the referred judgments. The principles laid down in those judgments and the facts and circumstances of the present case are totally different. In addition to it, this Court is not aiming at conclusion of the guilt only on the basis of the statement given under section 164 of the Cr.PC, but by considering the other facts and circumstances, such as the evidence of the sole witness PW.2, the other circumstances, the presence of the dead body in the house of the accused. This Court is not going against the citation of the Hon'ble Supreme Court and Hon'ble High Courts, but the citations relied upon by the accused are totally different from the facts and 109 SC No.514/2020 circumstances of the present case and are not applicable to the present case and the accused cannot take the benefit of those decisions.
112. The prosecution has also proved that the accused had tried to destroy the weapons and clothes after the commission of the offence. The production of the burnt knife-MO-1 and the partially burnt clothes all gives credence to the prosecution theory that after the commission of the crime the accused had tried to destroy the evidence causing the evidence of the commission of the offence to disappear. Though there are serious lapses on the part of the Investigating officer and though most of the mahazar and circumstantial witnesses have turned hostile, by relying upon the sole evidence of PW.2 and partial evidence of the other witnesses, it can be gathered that, it is only the accused who can be perpetrator of the 110 SC No.514/2020 crime and the evidences led goes to erringly point towards the guilt of the accused beyond all reasonable doubt and the prosecution has proved that the accused has committed the offence i.e., murdered the deceased Ambarish with the use of MO.1, 2 and 6, which resulted in his death and tried to destroy the evidence. Accordingly, the point Nos.1 and 2 are answered in the affirmative. 113 . Point No.3 :- For the above reasons, I proceed to pass the following :-
ORDER Acting under section 235(2) of the Cr.P.C. the accused-Sandeep is hereby convicted for the offences punishable under sections-302, 201 of the Indian Penal Code.
(Yermal Kalpana) XXVI Addl. City Civil Judge, Mayo Hall, Bengaluru.111
SC No.514/2020 07.02.2023:-
The accused produced through Video conference. Counsel for the accused called out- absent. Learned public prosecutor present.
Heard the accused on the sentence to be imposed.
ORDERS ON SENTENCE The accused submits that he has not made any confession to the police and he has been falsely implicated in this case. Further he states that he has got wife and two children who are now on the roads and in dire situation and prays for leniency.
2. The learned Public Prosecutor has submitted that the accused has been convicted for the offences punishable under sections-302 and 201 of the Indian Penal Code, and the case is to be considered under the 'rarest 112 SC No.514/2020 the rare case' and that considering a young person has lost his life, maximum punishment may be imposed on the accused.
3. I have considered the submissions made by the accused and the learned Public Prosecutor.
4. Considering the submission made by the accused and also considering the fact that the offence under section 302 of Indian Penal Code provides punishment of death penalty or life imprisonment and fine and Sec.201 of the Indian Penal Code. It is in the said order the punishment is mentioned in the provision. Therefore, the facts and position of law will have to be considered to decide appropriate sentence.
5. In the case of Alister Anthoy Pereira Vs. State of Maharashtra, reported in (2012) 2 SCC 648 , it is held, sentencing is an important task in the matters of crime and 113 SC No.514/2020 among the prime objectives of the criminal law is imposition of appropriate, adequate and just and proportionate sentence that commensurate with the nature and gravity of the crime and the manner in which the crime is done and there is no straight jacket formula for sentencing an accused on proof of crime and the twin objective of the sentencing policy is deterrence and correction. In the case of Dhananjoy Chattergey Vs. State of West Bengal, reported in (1994) 2 SCC 220 , Apex court has observed that while imposing sentence, the Courts must not only keep in view the rights of the criminal, but also the rights of the victim and the Society at large and the punishment which will be awarded must not be irrelevant, but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting 114 SC No.514/2020 public abhorrence and it should respond to society's cry for justice against the criminal. Further, so far as imposing the punishment of death penalty, though no straight jacket formula is evolved, it is consistently being observed by the Apex Court in the 'rarest of the rare cases' death penalty should be imposed.
6. In the case of Haresh Mohandas Rajputh Vs. State of Maharashtra, reported in (2011) 12 SCC 56 , Apex court has observed at para-20 as follows:-
"Rarest of the rare case" comes when a convict would be a menace and threat to the harmonious and peaceful co-existence of the society. The crime may be heinous or brutal but may not be in the category of "rarest of the rare case". There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The 115 SC No.514/2020 accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious co-existence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fiber of the society, e.g. crime committed for power or political ambition or indulge in organized 116 SC No.514/2020 criminal activities, death sentence should be awarded"
7. So, while considering whether the case is fit for treating same as rarest of the rare cases for imposing death penalty, it has to be borne in mind that there must be no reason to believe that the accused cannot be reformed or rehabilitated and he is likely to continue the criminal acts as would constitute continuing threat to the Society.
8. In the present case, the accused has committed murder of the deceased without there being any provocation by the victim. Murder has been committed due to enmity towards the fellow being who is a young aged person. He has found the deceased to be an easy target having no defence as he was fully drunk and was in unconscious or semi conscious state of mind. As such, it is 117 SC No.514/2020 a cold blooded murder without any provocation whatsoever from the victim. So far as the manner of committing the murder is concerned, the victim was killed by using knife, lamp stand and beer bottle. Hence, the cold blooded murder caused by assault with beer bottle, knife and brass lamp are in fact brutal and inhuman and it shocks conscious of the Society. But, as observed in Haresh Mohandas Rajput case supra crime may be heinous or brutal, but may not still be in the category of rarest of the rare case. In this case, the manner in which the crime has been committed is indeed brutal and inhuman. But, even then, I am of opinion that same is not of diabolical nature, which would fall in the category of 'rarest of the rare cases'. Therefore, I am of opinion that the case is not appropriate for imposing sentence of death penalty.
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9. Having concluded that the facts and circumstances do not warrant awarding punishment of death penalty for the offence under sections 302 of Indian Penal Code, next course available is that as per the said provision, minimum punishment prescribed is imprisonment for life and also fine. Similarly, for the offence under section 201 of Indian Penal Code, minimum sentence prescribed is seven years of Rigorous imprisonment and fine.
10. Keeping in view of the above said facts and circumstances and position of law, I proceed to pass the following:-
ORDER The accused-Sandeep is sentenced to imprisonment for life and fine of Rs.10,000/-
for the offence punishable under section-302 of Indian Penal Code. In default to pay the fine 119 SC No.514/2020 amount, the accused is ordered to undergo rigorous imprisonment for a period of 6 (six) months.
The accused is further sentenced to rigorous imprisonment for a period of 5 years and fine of Rs.5,000/- for the offence punishable under section-201 of Indian Penal Code. In default to pay the fine amount, the accused is ordered to undergo simple imprisonment for a period of 3 (three) months.
Substantive sentence for the offence under section-201 of Indian Penal Code shall run concurrently.
The period undergone in judicial custody is given set-off.
120
SC No.514/2020 Case properties i.e, M.Os.1 to 18 are ordered to be destroyed in accordance with law, after appeal period is over.
Issue Prison commitment Warrant against the accused for serving the sentence and commit him to prison.
Furnish free copy of the judgment to the accused forthwith.
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(Dictated by the stenographer, transcribed and typed by him and after corrections, pronounced by me on this 7 th day of February, 2023)
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(YERMAL KALPANA) XXVI Addl.City Civil & Sessions Judge, Mayo hall, Bengaluru.
121
SC No.514/2020 ANNEXURE
1. List of witnesses examined for complainant:-
P.W.1 Sri.Appu
P.W.2 Smt.Shilpa
P.W.3 Sri.Nawaz Pasha
P.W.4 Sri.Shanmugam
P.W.5 Sri.Vinod
P.W.6 Sri.Nataraj
P.W.7 Sri.Syed Sarfaraj Ahmed
P.W.8 Sri.Lakshmiputra
P.W.9 Sri.Vinay Kumar
P.W.10 Sri.Saheb Gowda
P.W.11 Sri.Nagappa
P.W.12 Sri.Sridhar.G
P.W.13 Sri.Santhosh Subhash Badiger
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P.W.14 Sri.Mahesh
P.W.15 Sri.Emmanuel
P.W.16 Sri.Basavanagowda Patil
P.W.17 Sri.Fakirappa
P.W.18 Sri.Govind Naik
P.W.19 Sri.Gowdappa Rayappa Biradar
P.W.20 Dr.B.M.Nagaraj
P.W.21 Sri.Manjunath.B.H.
P.W.22 Sri.Ajay Sarathi
P.W.23 Sri.Keshavamurthy
P.W.24 Smt.Uma.K
P.W.25 Dr.Srividya.Y
2. List of witnesses examined for Accused:
NIL
3. List of documents exhibited for Complainant:-
Ex.P.1 Statement 123 SC No.514/2020 Ex.P.2 Sec.164 Statement Ex.P.3 Statement of PW.2 Ex.P.4 Seizure Mahazar Ex.P.5 Spot Mahazar Ex.P.6 Inquest Mahazar Ex.P.7 Statement Ex.P.8 Report Ex.P.9 FSL Acknowledgment Ex.P.10 Statement of PW.14 Ex.P.11 Statement of PW.15 Ex.P.12 FIR Ex.P.13 Acknowledgment Ex.P.14 Report Ex.P.15 P.M.Report Ex.P.16 Police notice 124 SC No.514/2020 Ex.P.17 Form 144 Ex.P.18 Requisition Ex.P.19 Requisition Ex.P.20 Accused Statement Ex.P.21 Police notice Ex.P.22-23 Photographs Ex.P.24 Report Ex.P.25 Requisition Ex.P.26 Primary enquiry Ex.P.27 Statement u/s.164 of the Cr.PC. Ex.P.28 Certificate Ex.P.29 Order sheet in Crime No.323/2019 Ex.P.30 Remand warrant Ex.P.31 FSL Report Ex.P.32 Sample report 125 SC No.514/2020
4. List of documents exhibited for Accused :-
Nil
5. List of Material objects exhibited:-
MO-1 : Burnt Knife
MO-2 : Brass Lamp
MO-3 : Blood stained cotton samples-
MO-4 : Unstained cotton samples
MO-5 : Bloodstained carton box
MO-6 : Beer bottle pieces
MO-7 : Blue coloured partially burnt top
MO-8 : Yellow coloured partially burnt top
MO-9 : Green coloured partially burnt nighty
MO-10 : Red coloured partially burnt cloth
MO-11 : White coloured partially burnt clothe
MO-12 : Green coloured blood stained bag
MO-13 : White coloured blood stained
full sleeved shirt
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MO-14 : Bloodstained brown coloured baniyan MO-15 : Bloodstained blue coloured jeans pant MO-16 : Bloodstained white and blue coloured underwear.
MO-17 : Bloodstained brown and black coloured belt MO-18 : Blood sample.
(YERMAL KALPANA) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.
127
SC No.514/2020 The accused produced through Video conference. Learned counsel for the accused called out- absent. Learned Public Prosecutor present.
Heard the accused on the sentence to be imposed. (Sentence pronounced vide separate sentence) ORDER The accused-Sandeep is sentenced to imprisonment for life and fine of Rs.10,000/- for the offence punishable under section-302 of Indian Penal Code. In default to pay the fine amount, the accused is ordered to undergo rigorous imprisonment for a period of 6 (six) months. 128
SC No.514/2020 The accused is further sentenced to rigorous imprisonment for a period of 5 years and fine of Rs.5,000/- for the offence punishable under section- 201 of Indian Penal Code. In default to pay the fine amount, the accused is ordered to undergo simple imprisonment for a period of 3 (three) months.
Substantive sentence for the offence under section-201 of Indian Penal Code shall run concurrently.
The period undergone in judicial custody is given set-off.
Case properties i.e, M.Os.1 to 18 are ordered to be destroyed in accordance with law, after appeal period is over.
Issue Prison commitment Warrant against the accused for serving the sentence and commit him to prison.
Furnish free copy of the judgment to the accused forthwith.
(YERMAL KALPANA) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru 129 SC No.514/2020