Kumar vs State Of Karnataka By on 31 May, 2022

[Cites 2, Cited by 0]

Karnataka High Court

Kumar vs State Of Karnataka By on 31 May, 2022

Bench: G. Narendar

                               1

                                                         R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 31ST DAY OF MAY, 2022

                         PRESENT

           THE HON'BLE MR. JUSTICE G. NARENDAR

                           AND

             THE HON'BLE MR. JUSTICE M.I.ARUN

               CRIMINAL APPEAL NO.116/2019

BETWEEN:

KUMAR,
S/O PAPANNA,
AGED ABOUT 23 YEARS,
R/AT NO.10, MAIN ROAD,
6TH CROSS, KURABARAHALLI,
BANGALORE-560010
N/O. BELEGOAL, SRIRANGAPATNA,
MANDYA DISTRICT-571403.                       ... APPELLANT

(BY SRI M.V.CHARATI, ADVOCATE)

AND:

STATE OF KARNATAKA,
BY MAHALAKSHMI LAYOUT POLICE STATION,
BANGALORE-560010
REPRESENTED BY LEARNED
SPP HIGH COURT OF KARNATAKA,
BANGALORE-560001.
                                             ... RESPONDENT
(BY SRI VINAYAKA V.S, HCGP.)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 29.11.2014 PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT-XV, BENGALURU IN
                             2




S.C.NO.1032/2009 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302 OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, G.NARENDAR J., DELIVERED THE
FOLLOWING:

                        JUDGMENT

Heard the learned counsel for the appellant/convict and the learned HCGP for the respondent - State.

2. The case of the prosecution in brief is that on 27.05.2009, at about 10.00 p.m., accused is said to have brought the deceased to the room occupied by him in the house bearing No.10, 6th Main Road, 6th Cross, J. C. Nagar, Kurubarahalli, Bengaluru and that when confronted by PWs 1 and 2 is said to have represented that, she is his mother and that she would be leaving in the morning and that after some time, the witnesses heard some commotion and altercation and assuming that the fight being one between mother and a son, they did not deem it necessary to intervene. That on the morning of 29.05.2009 at about 07.00 a.m., when PW-1 came out to take his dog for a walk, he found blood stains on the compound wall near the 3 gate and also sensed a bad smell and he immediately contacted PW-3, the actual tenant, who thereafter came and together they approached the police and informed about their suspicion and that the police came and broke open the door and they found the deceased lying in a pool of blood and on the basis of the statements made by PWs 1, 2 and 3, police commenced investigation and arrested the accused on the same day. The police lodged charge sheet on 08.08.2009 and by the impugned judgment dated 29.11.2014, the Trial Court i.e., Fast Track Court-XV, Bengaluru City, was pleased to accept the prosecution version and proceeded to hold the accused guilty of the offence of Section 302 of IPC and sentenced him to undergo life imprisonment and to pay fine of Rs.10,000/-. Evidence in the case:

3. On behalf of the prosecution, PWs 1 to 23 have been examined and Exs.P-1 to P-30 have been marked and M.Os.1-15 have been produced and marked by the prosecution in support of the prosecution case. The accused 4 has examined himself as DW-1 and has also produced and marked one exhibit i.e., Ex.D-1 photograph.

4. One K. R. Ashok is examined as PW-1 and he is the son of PW-2, who it is alleged is the owner of the premises, in which the body of the deceased Meena was found and the complainant in his deposition on 10.02.2010 has identified the complaint lodged by him and the signature which have been marked as Exs.P-1 and P-1(a) respectively. He also identified the accused. Further, he has deposed that they have let-out the portion to one Mahesh, who is a contractor by profession. It is pertinent to note, at this stage itself, the measurement of the alleged room, which was let-out to said Mahesh, who is examined as PW-

3. The room is said to measure about 5 feet by 25 feet. He has deposed that on 27.05.2009 at about 09.45 in the night, the accused had brought one lady aged about 45 years along with him and when he was questioned by them (probably implying himself and his father), the accused had stated that the lady was his mother and that she would be 5 spending the night and leaving in the morning. That on the third day, he sensed bad smell and he also noticed blood stains. That immediately they contacted their tenant the said Mahesh (PW-3) on phone. That PW-3 immediately came and after seeing the blood stain and the locked room, all of them proceeded to the Police Station and lodged a complaint. That they did not enter the room and inspect the dead body as they were scared. That the accused was not present at that time. Thereafter, the police came to the spot and enquired with all and that he affixed his signature to the mahazar Ex.P-2 and identified his signature marked as Ex.P-2(a). That the police seized a t-shirt, pant and blood stained pieces of concrete. That the police also seized clean pieces of concrete too. MOs-1, 2, 3 and 4 have been marked through this witness. Thereafter, he has been subjected to cross-examination by defence counsel.

5. On 15.02.2010, in the cross-examination, he has deposed that he has studied upto SSLC and that he knows only to read Kannada but does not know how to write 6 Kannada. He admits that the house is surrounded by residential tenements. That he is residing in the house along with his parents and sister and that as it was only four months since they had shifted to the new house, he was not so well acquainted with the neighbours and that the residents living in the house opposite to his house alone are familiar and closely associated. That the resident of the opposite house is one Arun Kumar and he is carrying on business in manufacture of Grills. That said Arun Kumar goes for jogging at 05.00 a.m. or 07.00 a.m. That he and his family members go to bed by 11.00 p.m. and wake up at 06.00 a.m and go for walking for about 2 kms. That on 27.05.2009, he had reached the house at 09.30 or 10.00 p.m. That they do not close the main gate (not the one seen in the photo marked as Ex.D-1) immediately after returning home. That they close the gate by around 10.00 p.m. That they have let-out a shed on rent. That they have not let-out one shed on rent. He further denies knowing up to what time in the night there is movement of public in their road. That they have retained one shed in the ground 7 floor and let-out one shed and they have also let-out one shed to a friend. But he strangely does not know either the name or address of that friend and that the rear room has been let-out to Mahesh - PW-3. That they have not executed any rent agreement with the said Mahesh and that the said Mahesh has given advance of Rs.5,000/- and was paying monthly rent of Rs.700/-. He denies the suggestion that they have not let-out the shed to Mahesh. He admits that though the said Mahesh is not known to him or his family, they have let-out the house without any rental agreement or without ascertaining the identity of the said Mahesh. He further states that there are no other facilities like kitchen, toilet etc. and that only a bath room is available in the said shed. That there is one door and one window in the said room. That the said window is near the steps used by them to access their residential premises in the first floor. He denies the suggestion that the said portion/shed was used as a store room and not as accommodation for living. That the said Mahesh had handed over the room to the accused and the accused was staying 8 there. Thereafter, he admits that normally people would let-

out the house only to known persons. He denies the suggestion that PW-3 had never brought the accused and kept in his residence in the shed let-out to PW-3. That he was not observing the accused coming and leaving the shed. That on 27.05.2009, he saw the deceased and accused near the house at about 09.45 p.m to 10.00 p.m. That at about 10.15 p.m. to 10.30 p.m., they heard the sound of altercation between the deceased and the accused. That he along with his father, mother, one Arun Kumar and his maternal uncle went out and pacified the quarrel. But he does not know why his maternal uncle had come to his house on that late hour. That on the third day, he got up at about 06.00 a.m. and left for walking between 06.00 a.m. and 06.30 a.m.

6. In the continued cross-examination, on 16.06.2010, he deposes that apart from the complaint, the police have recorded his statement and then turns around and states that apart from the complaint, he has not given 9 any statement to the police. In the continued cross- examination, he states that apart form the complaint, police have not called him to the police station and showed him anything nor have they showed him the accused. Interestingly, he deposes that on 29.05.2009, when he went to the room allegedly occupied by the accused, he does not remember if the door was locked or not, but admits that when he visited the room on 28.05.2009, he found the room locked and he assumed that the occupants i.e., deceased and the accused must have gone somewhere. He further admits that when he went near the room on 28.05.2009, he did not find any blood stains in the passage. He further admits that he did not observe any blood stains on the walls also. He further deposes that he informed Mahesh about the altercation that took place on 27.05.2009 at 10.00 p.m. but at that time, the said Mahesh was not in Bengaluru but had traveled to Tirupathi. He further deposes that he does not know if he has intimated this aspect of the matter to the police either in the statement or in the complaint. That as PW-3 said Mahesh is a contractor, hence 10 it is possible that many people might be working under him. He has further deposed that the said Mahesh (PW-3) himself was paying the rents. That after Mahesh returning to Bengaluru on 29.05.2009, they informed the police at about 07.30 a.m. to 08.00 a.m. in the morning. That he and PW-3 went to the police station and gave the information. That at about three to four policemen accompanied them back to the spot. That PW-3 wrote and gave the complaint in the police station itself. He further elaborates by stating that they did not lodge the complaint when they went to the police station first time round and that the complaint was lodged after the police came and visited the spot and they accompanied them back to the police station. That the complaint was written by PW-3 and he signed it. That Mahesh read out what was written in the complaint. That he and Mahesh were accompanied by two of the police, who had visited the spot. He further interestingly deposes that it is the police, who accompanied them back to the spot, broke open the door of the room and thereafter they drew up the mahazar regarding the position of the body. That 11 mahazar was drawn up at about 10.30 a.m. when he and his brother-in-law were present. He denies the suggestion that he is deposing falsely and implicating the accused only to escape the consequences of finding of the dead body in their premises. He further denies the suggestion that he and his friend Mahesh have ensured that the accused stands framed for the offence. In the continued further cross-examination on 04.11.2010, he deposes that his family comprises of six members and that apart from them, there are no other residents in building. He further states that out of two shops in the ground floor, one is retained and one is given to their friend. He admits that in the shed behind shops, they have installed a window facing towards east. That when he first observed blood stains on the gate, he was unaware as to whether it was human blood or animal blood. That after he observed the blood, he immediately informed PW-3 Mahesh. That he had spoken to Mahesh a day before they discovering the body. That he had informed him that the accused has brought somebody 12 calling her to be his mother. The Trial Court has recorded a particular question specifically i.e., as below:-

"¥Àæ±Éß : D ªÀÄ»¼ÉAiÀÄ£ÀÄß vÁ¬Ä JAzÀÄ ºÉÃ½zÁUÀ ¤ªÀÄUÉ ¸ÀA±ÀAiÀÄ §A¢vÉÆÛÃ E®èªÉÇÃ?

GvÀÛgÀ : D jÃw ¸ÀA±ÀAiÀÄ §A¢zÀÝPÉÌ £Á£ÀÄ ªÀÄºÉÃ±ïgÀªÀjUÉ ¥sÉÆÃ£ï ªÀiÁr ºÉÃ½zÉÝ. £ÀAvÀgÀ ªÀÄvÉÛ D ¥Àæ±Éß PÉÃ½zÁUÀ ¸ÁQë ¸ÀA±ÀAiÀÄ §A¢gÀ°®è JAzÀÄ GvÀÛj¹zÁÝgÉ."

7. To the query as to whether the statement of the accused that the lady (deceased) is his mother aroused his suspicion, PW-1 answers in the positive and further elaborates that only because they suspected the correctness of the statement, he called up Mahesh at about 10.00 p.m. and informed that the accused has brought some lady. He further states that he and his father went out when they heard the altercation and that his father questioned the accused. That the accused was brought by Mahesh and it is only then that the witness saw the accused. That he did not contact Mahesh on the third day i.e., on 29.05.2009. That both he and his father leave home at about 09.30 a.m. and return by 09.00 p.m. to 09.15 p.m. That they made no efforts to identify as to from where this stench was 13 emanating. That they casually informed Mahesh that some stains are found. He admits that the locality where they reside is a thickly populated locality. That they told the police that they had observed some stains and asked them to come and check stains. That two police constables accompanied them back to the spot and after observing the stains, they did not clarify as to whether the stains were of human origin or animal blood. That it is the police constable, who identified the source of the stench and informed them that the stench is emanating from the passage. Police constables broke open the lock. That they did not draw a mahazar before breaking open the lock. That he does not know what happened to the lock that was broken but it is the police alone who broke the lock. That it is the police, who entered room after breaking open the lock. That neither he nor Mahesh entered room. That they do not know what had occurred/happened within the room. That he lodged complaint in the police station and before lodging the complaint in the police station, he did not go inside the house. That he has not, in his complaint, 14 mentioned as to the cause of death. That he saw the dead body at about 08.30 a.m. That he did not instruct Mahesh as to how to draft the complaint. That Mahesh drafted the complaint and read it over to him and he simply signed the complaint. That he does not know the nature of injuries on the body of the deceased. That he does not know how the deceased died. That he does not remember what time the police arrived. That he and Mahesh accompanied police back to the station. That he does not know the designation of the police who accompanied him back. That the lock was broke open and thereafter they went to the police station and the door was kept open till they returned from the police station. That he does not remember as to what activities the police undertook inside the room nor does he know as to what are the items seized by the police. It is elicited that the seizure were not effected in his presence. That, apart from his brother-in-law and Mahesh, a lot of people had gathered there. That he does not remember as to whether he has narrated the manner in which the crime was committed while drawing up the mahazar. That he is not an 15 eye-witness to the incident. He does not remember at what time the mahazar was drawn up. That when he affixed his signature to the mahazar, body was not there. That even before the police came and broke open the lock of the room door, the news had traveled and all the neighbours were aware of the same. That about 20 to 30 people had assembled there. That the police locked the door and left the place and that they returned by around 01.00 p.m. in the noon. That the accused used to wear only t-shirt and pant everyday. That accused used to wear black colour pant only. That they stitched pant and shirt in their shop also. He further admits that M.O.No-4 is not a t-shirt. He further admits that such shirt and pant are commonly available in the shops all around. He admits that there are no identification marks on the shirt in order to assert that it is the same shirt (implying it is the shirt that was seen by him on the accused), he suggests that 38 size would fit the accused and that he is able to say it because of his professional experience as a Tailor. He admits that the pant that is seized M.O.No-5 would not fit the accused but 16 clarifies that it used to fit him then i.e., on the date of occurrence. To a further question, he admits that the physical appearance of the accused has not changed between the date on which the offence was committed and on the date of his deposition. He denies that pant and shirt belongs to him and had taken it from his house and handed over to the police. It is elicited that even before the pant and shirt had been seized, the body had already been shifted. That none of the relatives of the deceased had come to the spot. That he was not aware of the details of the deceased till the body was removed from the house and that he denies the suggestion that it was Mahesh, who was occupying the room and not accused but admits that it was Mahesh, who was depositing the rents. That Mahesh was present along with him when the police came and broke open the door. He further interestingly admits that when Mahesh asked for keys, he reminded Mahesh (PW-3) that the keys are with him at his house. That they have given the keys for locking the gate. He denies suggestion that it 17 was Mahesh, who had come on the previous day and it was Mahesh (PW-3), who had committed the crime.

8. One Ravi K. S., aged about 60 years is examined as PW-2 and he is none other than the father of PW-1 and the owner of the premises where the dead body was discovered. He has been examined on 10.02.2010 and he has deposed that he knows the accused. He states that one Mahesh (PW-3) had taken a small room in the ground floor on rent and he had informed that this accused would be staying in the said room. That on 27.05.2009 at about 10.00 p.m. in the night, a quarrel ensued between the accused and the lady. He further deposes that the deceased lady might have accompanied the accused that night but the quarrel took place outside the house. That they went out and asked as to why they were quarreling to which the accused responded that she is his mother. That he would be sending back his mother in the morning. He further deposes that three days thereafter when his son took their dog for a walk in the morning, he noticed blood stains in the ground 18 floor and he went to the police station and lodged a complaint and upon the complaint being lodged, the police came and inspected the room. That they did not enter the room and remained outside. That they saw the dead body of the deceased at M. S. Ramaiah Hospital only. That they observed injuries on the head of the deceased and the tongue sticking outside. That the police recorded his statement when he went to M. S. Ramaiah Hospital.

9. In the cross-examination, on 16.06.2010, he deposes that the distance between his shop and his house is about 2 kms and that he works till 09.30 p.m. in the night. That he has his dinner after returning from his work and thereafter he goes to sleep. That on the fateful day, he returned about 09.30 p.m. and when he was washing his limbs, he heard the sound of quarrel. That the gate in the ground floor is at one end and the door in the first floor where they reside is at the other end. That they can access the ground floor gate only by traversing the space. That when he was entering the house on 27.05.2009, he did not 19 observe anyone near the gate. He admits that he knows Mahesh. He further admits that his son and the said Mahesh (PW-3) are known to each other. That Mahesh was paying rent of Rs.700/-. That Mahesh informed him that he is executing civil works for the BBMP. That Mahesh had informed him that there are lot many labourers working under him. That his grandson's naming ceremony was fixed on 28.05.2009 and that there was a lot of movement because they were involved in the preparation of the function. They did not pay much attention on 28.05.2009. That on 29.05.2009, he woke up at 06.00 a.m. for a walk and returned half an hour later and that he did not notice the blood stains either while going or while returning from the walk and he became aware of the blood stains only when he was informed by his son. That his son, PW-1 had not inform him about the room being locked on 28.05.2009. The witness further clarifies probably because he was busy with the preparation, his son had not intimated about the room being locked. That he did not call and inform PW-3 about the quarrel that occurred on the night on 27.05.2009. 20 That he does not know if his son had informed Mahesh about the same or not.

10. It is pertinent to note the statement elicited during the cross-examination that it is PWs-2 and 1, who went to the police station to lodge the complaint. It is even more pertinent to note that he denies the suggestion that they dictated the contents and Mahesh (PW-3) wrote it down. He is not aware as to how many policemen accompanied them back to home. He denies the suggestion that they broke open the door and further states that it is the police who broke open the door. It is pertinent to note, at this stage itself, the variance in the statement of father and son, PWs.1 and 2, where, the son deposes that the police broke open the lock but the father deposes that the police broke open the door. He further states that they became aware of the dead body only when the door was broke open. He denies the suggestion that a false narration has been made against the accused only to enable them to escape from the clutches of law.

11. In the continued cross-examination, on 26.11.2010, it is elicited that he was acquainted with Mahesh (PW-3) only after the portion was given on rent to him and he came to know that he was executing civil work and was a contractor for the BBMP. That he does not know as to how many labourers are working under him. That Mahesh paid rent only one month. That he does not know who all were accessing the rented out portion i.e., who all were using or visiting the premises rented to Mahesh (PW-

3). It is elicited that he does not remember what dress the accused was wearing on that day. It is further elicited that because of his age, he has eye related problems and his sight is diminished. That he went and observed the bloodstains on being informed by his son, but did not try to find out from where the stench was emanating. He states that he went to the police station as his son and Mahesh had gone. He states that Mahesh wrote down the complaint on his instructions. That police visited the scene of offence after receiving the complaint. That the door lock was broken by the police in his presence. That he did not enter the 22 portion after the lock was broken. That after the lock was broken, Mahesh was with the police. That he does not know what the police did after breaking open the lock. That the police did not enquire with him as to who is occupying the house. That he did not know the age or name of the deceased. He admits that it is illegal to let-out or rent-out house or shop without entering into an agreement. That Mahesh was putting off the signing of the agreement. That he has not issued any receipt to Mahesh for having received the rent. He states that when he contacted Mahesh (PW-3) after a quarrel on 27.05.2009, Mahesh informed that he was in Tirupati. He admits that the portion having been let- out to Mahesh and it is Mahesh who is responsible for all the occurrences therein. He admits that it is possible that Mahesh might have lied to him about he being in Tirupati. That he came to know from the public who had gathered that death has occurred due to strangulation. That the dead body was removed by 10.00 a.m. That after the body was removed, none of the policemen remained in the spot. That he does not know what are the articles that were seized by 23 the police. That after the dead body was removed, the police did not return to the spot. That he went to see the dead body at M. S. Ramaiah Hospital and saw body at about 12 noon. That the relatives of the deceased had gathered in M. S. Ramaiah Hospital. That after seeing the dead body in the hospital, he realized that death has occurred on account of strangulation. That Mahesh remained with him in the Hospital till all the procedures were completed by the police. He denies the suggestion that quarrel that occurred on 27.05.2009 is between Mahesh and deceased. He denies the suggestion that he has seen the accused first time after registration of the case. He denied the suggestion that he has deposed falsely.

12. PW-3 has been examined on 10.02.2010. He would depose that he knows the accused and that the accused had approached him for work and that initially he was staying with his brother and as the work site was faraway, he requested his help and hence he got the portion in the house of PW-2 on rent for the accused. "That the 24 room was next to the car shed in the rear side of the house". That one day night, PW-2 called him on his phone and informed him that accused had brought some lady and was quarrelling with her and that the accused was representing that the lady was his mother and asked him to come over immediately and he replied that it would not be possible for him and he said that he will come and enquire tomorrow or day after tomorrow. Then again Ravi i.e. PW-2 called and informed him about observing bloodstains and hence, immediately he rushed to the spot and he also observed stench emanating from the premises and hence, they decided not to touch anything and rushed to the police station and thereafter the police visited the scene of occurrence. That the police broke open the lock. That he called the accused on his mobile, but the phone was switched off. When the police entered the room he saw an unknown woman lying dead and the face was completely covered with the blood. That the saripallu was rounded across the neck. The injuries were also found on the nose. 25 The body was removed and taken to M. S. Ramaiah Hospital and that he accompanied the body to the hospital.

13. In the cross-examination on 27.07.2010, PW-3 admits he knows both the father (PW-2 Ravi) and son (PW- 1 Ashok) duo. That he got acquainted with PW-1 (son) through a broker and that the broker introduced him to PW- 1 on his enquiry for accommodation. It is pertinent and relevant to note at this stage itself that the statement of PW-3 that it is PW-2 who contacted him on phone, is contrary to the statement by PW-2 who has stated that it was PW-1 who contacted PW-3 on the phone. That he himself paid rent of Rs.2,000/- and put the accused in occupation of the premises. In the cross-examination, he states that he arrived from Tirupati on the morning of 29.05.2009. He states that he is not aware at what time he received the call after returning from Tirupati, but they were persistently calling on the phone. That their house i.e. the house of PW-2 and PW-3 are situated in adjoining streets. That he returned from Tirupati between 7.00 a.m. to 7:30 26 a.m. That immediately he reached the house of PW-2 by 8 a.m. and met both PW-1 and PW-2. That when he reached there, the front gate was locked. To a suggestion that there are two store rooms in the staircase, he replied he does not know. He states that two of them went to the police station. Even when they went to the police station the Iron Gate was locked. He states that the police opened the Iron Gate and entered the room. He denies the suggestion that the accused was not known to him nor he was working with him nor had he got the accommodation for the accused. He denies having the keys i.e. the gate and the room keys. It is pertinent to re-collect the deposition of PW-1, who has stated in the cross-examination that he reminded PW-3, that the key was with PW-3. In the continued cross- examination on 05.01.2011 he states that he participates in the tenders for execution of roads and drainage works called by the BBMP. That he is a Class-III contractor. He admits that it is required for a person to get registered with the BBMP. He states that he has not got registered his license. That he is taking and executing work as a sub- 27 contractor. It is elicited that if he is a registered contractor, he is required to maintain the details of the number of workmen, the salary paid to them, etc.

14. The Trial Court has recorded that the witness to a query as to whether he remembers the date of occurrence, has replied as 27.07.2009 and that during that time he was working as a Mestry with one contractor by name Anand residing in the 1st Block. That there were 14 persons working along with him, but he does not know their names. That 2 to 3 months prior to the incident the accused was working along with him. That the accused was not known to him prior to that. The trial court has recorded that while he was passing-by on the road, the accused approached him and asked for work and he gave him work. That the accused was working as Mason with him. To a query he admits that to work as a Mason for executing the BBMP works, experience is required. He admits that he has not ascertained whether the accused is experienced in executing Masonary work. It is further elicited that he did 28 not know from where the accused hails nor where he was staying. That the accused was working with him and he was paying him the salary but he does not have any material to demonstrate the same. That PW-2 is not acquainted with PW-3. That the father of PW-2 is also not acquainted with the PW-3. He reiterates that it is PW-2, who called him and he was in Tirupati when he received the call. That he had traveled to Tirupati in his own vehicle. That he had purchased tickets for Darshan of lord Tirupti Thimmappa and the trial Court has recorded that there is no system of ticket in Tirumala and only thumb print is taken and that as Ashok had called him on the third day and that he does not know the day of the week when he went to Tirupati (the same in our opinion has some relevance because the dates 27, 28 and 29 of May, 2009 are working days of the week i.e. Wednesday, Thursday and Friday). It is further elicited that PW-1 merely informed him that some quarrel is going on. That PW-1 did not mention anything about the stench and he was informed about stench and smell only after he reached the spot. That he was not aware why such a 29 stench was emanating. That on the ground floor there is a small window and the smell was coming through the window. Immediately both he and PW-1 went to the police station. He states that it might be 8:30 or 7:30 in the morning when he reached the police station and PW-1 lodged a complaint then itself. He admits that he wrote down the complaint. It is further elicited that he is not aware as to what has happened at the time of writing the complaint. He was not aware what has happened in the rented portion nor he was aware about the identity of the dead person. He states that 3 to 4 persons accompanied him and broke open the door. He states that he is not aware as who were the persons working with him on the day of the incident or on 27.05.2009 and that he does not know the names of those who were working with him on that day. It is pertinent to note the admission by PW-3 in the following manner:-

"D ¢£À PÀÆqÀ £À£Àß PÉ®¸À £ÀqÉAiÀÄÄwÛvÀÄÛ".

15. Meaning thereby, 'on the said day also my work was progressing'. It would not be out of place to record 30 here itself the peculiarity of the deposition of PW-3. He admits that work was being executed even on the day of the incident but he does not know who were the laborers working with him. The deposition is also silent as to whether the accused was working there or not. He can remember the work that was being carried out but he cannot remember the names of even a single co-worker. It is interesting to note the further deposition. The admission of PW-3, that he had not visited the worksite on the day of incident and two days before the same assumes significance. If that be so, then the period would be between 25, 26 and 27 and it contradicts his statement that he reached Bengaluru only on 29th and it is elicited because of his absence from the site, he does not know who all were working and or not working in the site. It is further elicited that even before the police could come and break open the door a large crowd gathered there. He denies the suggestion that he was subjected to interrogation for the whole day in respect of the incident. It is further elicited that both he and Ashok discussed as to the nature and what 31 contents of the complaint ought to be and thereafter lodged a complaint and then the trial court records that the witness volunteers and clarifies that discussion is to mean and is to be understood as PW-1 not knowing how to write Kannada. He denies that he has contributed any material to the contents of the complaint. The trial court records that witness has stated that he does not know anything about the incident and that he has written down only such material as narrated by PW-1. It is elicited that police did not prepare any Mahazar nor record any Mahazar before removing the body. It is elicited that he and PW-1 accompanied the police to the mortuary. He further states that they were there in the hospital till about 2 in the afternoon. He states that he is not aware whether the relatives of the deceased had come or not. That he has not gone to the police station. Thereafter it is pertinent to note that failure of PW-3 to mention about the presence of PW-2. It is the categorical statement of PW-2 that he went and saw the dead body in the hospital morgue. Incidentally PW- 2 did not speak about PW-3 also. It is strange that two 32 witnesses go to the same place for the same purpose and are not aware about the presence of the other.

16. He further states that PW-1 and his house are in the neighbouring streets and it takes about 8 to 10 minutes to reach the other's place. It is elicited that he has not nominated anyone else to supervise the work in his absence. That he has been residing in the house for the last year and half. He asserts that the accused had a mobile phone and that he has spoken to the accused over the mobile phone but it is elicited that he did not call back the said Kumar to find out what was the reason for the quarrel or who the lady was. He tried to call the accused on the mobile phone at about 7 or 8 p.m. and that he made two attempts but the phone was switched off. That on the 3rd day also he attempted to contact the accused but the phone was switched off. It is elicited that he did not meet Ashok PW-1 on the 3rd day. He proceeds to state that the accused had not come to work on the day of the incident and the 3rd day (this is self-contradictory). It is his 33 deposition that he was not aware as to who all were working in his site in his absence and he has also not appointed any supervisor to report to him. This is nothing but a clear case of improvement. He further emphasize to state that he came to know about the absence of the accused two days thereafter. Proceeding further, he states that he does not remember since how many days the accused was attending to work. He further states that salary is paid to the labourers on every Sunday implying thereby, weekly payment system. If that be the case, then at least kacha records would be maintained to mark or record as to who all have worked on a particular day. If that is so, no such record is either produced or seized by the police. It is further stated by the accused that the last payment was made by him to the accused on the previous Sunday but he would state that he has not maintained any records. He admits the suggestion that place where the body was found is not a habitable place. He denies the suggestion that he had taken the place to use it as a godown. It is further elicited that he had not visited the 34 place of occurrence and he had been there for the first time only when the body was discovered. He denies the suggestion that the accused had never worked under him. It is elicited that he had taken the portion on rent. The trial courts records that he volunteers that there was no occasion for him to take on rent as he is living in his own house. He denies the suggestion that the deceased was a co-worker and was working under him. He denies the suggestion that he is responsible for causing the death on the deceased.

17. PW-4 is one Malathi, elder sister of deceased. She speaks about the husband of the deceased having abandoned her one year prior to the incident and that her sister was living with her. She is a hear-say witness and she admits to having enquired with PW-2 about the murder of her sister. In the cross-examination, she states that her sister was working as a Cook in Shivajinagar and that she used to leave at 06.30 a.m. in the morning and returned back by 02.00 p.m. in the afternoon. She is not aware as to 35 what time the deceased left the house on 27.05.2009 but an admission is elicited that the accused was identified to her in the Hospital and she was told that he is the one, who murdered her sister and that she has been informed by PW- 2 that the murder has taken place on 27.05.2009 and they came to know about it only on 29.05.2009. The evidence of PW-4 is of no avail to demonstrate the case of the prosecution.

18. PW-5 is again another elder sister of the deceased and is neither an eye-witness nor a circumstantial witness and is again a hear-say witness. In the cross- examination, it is elicited that she does not know to read and write Kannada and she is not aware as to what the police have taken down as her statement. It is further elicited that the father and son duo i.e., PW-2 and PW-1 were in the Hospital and they pointed out accused and that the accused was sitting in the Van.

19. PW-6 is the nephew of the deceased i.e., PW-4's son. No incriminating evidence is let-in by this witness and 36 he is an hear-say witness. A crucial information is elicited in the cross examination that the police called them on the phone and informed him about the demise of his aunt.

20. PW-7, one M. Girish is a Mahazar witness. In the examination-in-chief, he states that the accused was not found at the place of occurrence but he saw the accused in the police station. PW-7 is none other than the brother-in- law of PW-2 and in the cross-examination, it is elicited that he went to the place of incident on receiving call from his brother-in-law (PW-2), who narrated about the incident during conversation. It is elicited that he does not know what was written down in the Mahazar. That he has not read the same and that he did not go to the police station. It is elicited in the cross-examination that the police asked him to come back in the evening and that he went back in the evening and signed the mahazar implying that he was not present during the drawing up of mahazar and that it was about 06.30 p.m. to 07.00 p.m., when he affixed his signature to the mahazar. It is further elicited that the 37 mahazar had already been written. It is also elicited that he does not know who are the police officers, who visited the scene of offence. It is further elicited that he visited the place on the request of his brother-in-law and nephew PW-2 and 1. It is further elicited that PW-1 has accompanied PW- 7 to the Court on the day of the cross-examination. It is further elicited that he went to the house of PW-2 at 07.00 to 07.30 a.m. and by that time, large crowd had gathered and more importantly, it is elicited that the police were already there at the spot. More importantly, it is elicited that he accompanied PWs-2 and 1 to the police station. There is no mention of the presence of PW-3.

21. PW-8 is one Arun Kumar and claims to occupy the residence being the third house from the house of PW-2 and on the opposite side (meaning that the house is situated diagonally). He deposes about PW-2 owning the house and he being a Tailor and that the family of PW-2 consists of himself, PW-2's wife, PW-1, daughter-in-law etc. That the house was given on rent to one Mahesh i.e., PW-3 38 and he had permitted one of his workers to stay therein. He identified the accused as the person, who occupied the rented space. He speaks about the incident on the night of 27.05.2009. He further deposes that the accused identified the unknown lady as his mother. That he saw the accused leaving on the morning of 28.05.2009 but thereafter he did not see him. That on the morning of 29.05.2009, he saw crowd and police also standing there along with PWs-2 and 1 and when he went and enquired with them, he was informed that a murder has taken place. That he went near the room and saw the dead body of a women lying there with the pallu of the saree tied around the neck. That the place was blood stained.

22. In the cross-examination, he states he is residing opposite to PW-2's house and that his house is situated next to his factory and that he works in the factory till 8.00 to 9.00 p.m. That the entrance door of PW-2's house is visible from their house. That on 27.05.2009, he heard a quarrel and hence, he came out. It is elicited that his house and 39 PW-2's house are separated by 30 feet road and if the inmates of PW-2's house speak, it is not audible to him. It is further elicited that he is not aware as to what time PW-2 and PW-1 wake up or leave for work or come back home. It is further elicited that he normally goes to bed by around 11.30 p.m. It is also elicited that he is not aware of any of the activities of PWs-2 and 1. It is elicited that entrance door of PW-2's house is near the stair case itself. He states that the iron gate placed across the passage is visible to him. He denies in the negative that PWs-2 and 1 have not discussed about any of the matters with him implying that there has been a discussion between them. That he goes for a walk along with his dog at 06.00 a.m. to 06.30 a.m. That Ravi and Ashok accompany him along with their dog and on the said day also, PWs-2 and 1 had accompanied him for a walk. It is further elicited that on 28.05.2009, a lot of people had visited house of PW-2 on account of the function organized by them. Ex.D1 is marked through this witness. Ex.D-1 is a photo and he admits that the photo is of the passage and iron gate installed in PW-2's house. The 40 witness further admits that it is the rear gate of PW-2's house. In effect, it is elicited that the house of PW-8 is in the street in front of PW-2's house. After confronting witness with the photo at Ex.D-1, it is further elicited that people visiting the rented portion or exiting the rented portion are not visible and it is further elicited that he does not know as to how many tenants are there nor their details. He denies the suggestion that he has not seen the accused there. It is further elicited that the police visited the spot by 07.30 and on seeing them, he went over there. He states that he does not know what the police have written down nor does he know what are the articles that were seized. This witness is not an eye-witness and evidence is vitiated by inherent contradictions.

23. In the further cross-examination, it is yet again elicited that he is not aware about the details of the tenants occupying PW-2's house. A crucial admission is also elicited wherein, the witness admits that he has seen the deceased near the house on two or three occasions. It is elicited that 41 he is not a witness to the renting out of the premises to Mahesh. He further states that the room measures 4 feet by 20 feet. He further admits that the said room is actually a passage. He further admits it is not possible for any family to habitat there. The Trial Court has recorded that the witness volunteers to state that Mahesh was not residing there. He pleads ignorance to the number of labourers working under said Mahesh (PW-3). The Trial Court has also recorded the conduct of this witness to a question as to whether he was aware who was the tenant prior to 29.05.2009. It is further elicited that humans cannot live in that passage like space. It is further elicited that when he went and saw the dead body, police were already present. To a suggestion that PW-3 was using the rented portion as a godown, the witness says he is not aware. He denies the suggestion that he is deposing falsely in order to help his friend Mahesh (PW-3).

24. PW-9 is the Doctor working as Assistant Professor in M. S. Ramaiah Hospital, where the Post Mortem 42 of the deceased was conducted and who has carried out the potentiality test on the accused. The witness admittedly speaks about an extra-judicial confession allegedly made by the accused and undoubtedly in the presence of the police. He deposes that he did not find any evidence to hold that the accused is impotent and incapable of committing a sexual act. Ex.P-5, P-3, 3 (a) and 3(b) are marked through this witness and he identifies the accused as a person, who he has examined and the police requisition is marked as Ex.P-4 and signature is marked as Ex.P-4(a). The evidence of this witness neither demonstrates a sexual assault nor the murder.

25. PW-10 is the mahazar witness. He deposes that police had brought the accused along with them and he has affixed his signature to the mahazar. Some MOs are marked through this witness. It is elicited that PW-1 Ashok is the brother-in-law. It is elicited that PW-7 Girish is the brother- in-law of PW-2 and was present along with him. That he visited the house on receiving information from PW-1 about 43 the incident. It is elicited that MOs were neither sealed nor stamped in their presence. That except signing mahazar, he is not aware of the contents.

26. PW-11 is one Dr. N. T. Satish and is the Doctor, who conducted Post Mortem. The police requisition is marked as Ex.P-7. The witness speaks of marbling of veins present over roots of upperlimbs, sides of chest and abdomen, abdomen distended. Rigormortis passed off. Post Mortem staining present over back. Dried blood stains present at places over face. Nail beds shows bluish discolouration clothes etc. Further Report says that no injuries have been observed around the external genetelia, spermatozoa absent in vaginal smear, however vaginal penetration cannot be excluded and is concluded by an opinion that the death is due to asphyxia as a result of ligature strangulation. Ex.P-9 FSL Report is marked through this witness. Ex.P-10 the test report regarding the saree is also marked through this witness.

27. In the cross-examination, it is elicited that he has not measured the circumferential measurement of the ligature i.e., when the saree is twisted. He further states that ligature mark completely encircles the neck. To a specific query that the ligature would cut and would not completely encircle the neck if saree is used as a ligature, he states that he has not cross-checked that space. It is further elicited that if the deceased had been subjected to sexual intercourse, presence of spermatozoa would be detected in the genitalia of the deceased. It is further elicited that spermatozoa would be present for atleast four days after sexual intercourse. It is further elicited that no spermatozoa has been observed or detected in the body. It is further elicited that if the assailant holds the tuft of hair and assaults on the face, scars are likely to occur at prominent places and would be visible. That he has noted the injuries to the head under the heading 'scalp' in his report. In the cross-examination, a critical admission is elicited from this witness. He admits that in the Post- Mortem Report, he has written that no injuries are observed 45 on the head and no external injuries are found on the scalp. The Trial Court has recorded that the witness has volunteered that after the skull was opened, he found certain bleeding on the left side. He admits that he has not written the shape of the contusion. The Trial Court has recorded that at this juncture the witness has voluntarily stated that the putrification of the body had started and on account of that, the characteristics of the blood had started changing and on account of that, it is not possible to describe the shape and size contusion. He further deposes that the blood in any dead body starts coagulating anywhere between 6 to 8 hours. It is further elicited that if anybody's tuft is held and head is banged against the wall, it will result in fracture of the skull but in the case of the deceased, no such fracture is found. It is further elicited that as semi-digested food was found, it is not possible for him to state about the nature of the food consumed by the deceased. It is further elicited that it is not possible for him to state as to how many hours before her death, she had taken food. That he has used a rectal temperature method 46 to calculate the time since death. He states that he does not know as to when and how for long the body was kept in cold storage. It is further elicited that he does not know if the body was inspected by any other Doctor before it was directed to be kept in cold storage. It is further elicited that on account of the body having been stored in the cold storage, it is not possible for him to state the exact time since death.

28. PW-12 is P.C.No.7689. He deposes that he was in the morning duty in the station on 29.05.2009. The Superintendent one Nanda Kumar gave a phone number and told it is the number of the sister of deceased and instructed him to inform her to come to M. S. Ramaiah Hospital. That he called the said number and asked them to come to M. S. Ramaiah Hospital. In the cross-examination, he states that it is the Superintendent, who gave the name of the sister of the deceased as Malathi and he does not know who is the subscriber of the telephone number. 47

29. PW-13 is the ASI, who has been deputed to secure the accused. He deposes that on 29.05.2009, the police inspector instructed him and P.C. No.10385 to secure the accused in Crime No.204/2009. That they went near J. C. Nagar Garden Bar and enquired about the accused with their informants. That at 02.30 p.m., they saw the accused coming in front of the bar. On being identified by their informants, they caught hold of him and enquired with him about his name and address for which the accused is said to have given his name as Kumar S/o Papanna and that he is resident of a village near Srirangapatna. Thereafter, they produced him before the Police Inspector and submitted the Report and he identifies the accused as the person they secured on that day.

30. PW-14 is one Vikas, a photographer. He deposes that on 29.05.2009, he received a call from the Mahalakshmi Layout Police Station informing him that a murder has taken place and he was asked to come over to 48 snap photographs. That accordingly, he proceeded to the spot and took photographs of the body.

31. PW-15 is one Rangegowda, Assistant Director, Forensic Science Laboratory. He deposes that on 08.06.2009, Assistant Commissioner, Malleshwaram had forwarded four sealed bottles in Crime No.204/2009 and that seals were placed by the Medical Officer. He further states that the presence of alcohol was detected in the items kept in bottle Nos.1, 2 and 3. That, apart from the above, no poisonous substance is detected. From the evidence of this witness, it is pertinent to note that alcohol has been detected by them in the body of the deceased.

32. PW-16 is the P.C.No.8505, who has taken and handed over the samples. PW-17 is the Scientific Officer, who has examined Mos.1, 2, 3, 4, 5, 6, 7 and 8 and has deposed that blood stains were found on Mos.1, 3 and 4 and no blood stains were found on 2, 5, 7 and 8 and items Nos.1, 3 and 4 are stained with human blood and item No.4 is stained with AB ground blood. The witness states that 49 blood group has been wrongly typed in the Report as 'B' group. In the case sheet and observation sheet/case sheet, it has been noted as 'AB' group. She further deposes that in respect of MO.8, it has merely been written as hair and it is not detailed as to whether it is pubic hair or scalp hair. The witness has been subjected to searching cross-examination and she would fairly admit that the error is a serious one and amounts to dereliction of duty. It is also admitted that she has not signed the note sheet. It is also elicited that the 'B.S. No.' to which she refers to, has not been found in Ex.P-22.

33. PW-18 is the Investigating Officer i.e., Police Inspector one Nagaraja .S. He deposes that he carried forward investigation and seized MOs and PF No.44/2009. It is elicited that the parcels/samples were not sealed in his presence.

34. PW-19 is the Head Constable H.C.No.2340 and he deposes regarding shifting of the body to M.S. Ramaiah Hospital and handing over requisition to conduct Post- 50 Mortem and handing over the body to the possession of one Smt. Malini, the sister of deceased.

35. PW-20 is a constable, who speaks about the transporting the seized items. PW-21 is P.C.No.8341, who speaks about transmitting the FIR by 11.30 a.m. to the Court and that the time noted as 11.00 a.m. is erroneous and that the same is on account of an inadvertent mistake.

36. PW-22 is Police Inspector/Investigating Officer. In the cross-examination, he states that it was 08.00 a.m. when the complainants reached station. It is elicited that he does not know who all accompanied them to the police station and that he has forgotten, who was the SHO on that day. That he received information at about 08.00 a.m. and thereafter he went to the place of occurrence and after arriving there, he came to know of the details. It is elicited in the cross-examination that somebody came to the station and complained that a bad smell was emanating and they do not know whether it is from the body of the dead animal or human being. He further states that he does not know 51 who are the policemen that were deputed by the then SHO. That the police personnel, who visited the spot reported to him that dead body of a women is found and that he suspected it to be a murder. On receiving that information, he states that he visited the spot and registered FIR.

37. To a pointed question as to whether he enquired with the owner of the premises prior to registering the FIR, he answers that he enquired with the son of the owner one Ashok i.e., PW-1. That enquiry was for about two minutes. It is further elicited that even before he reached the spot, the door of the room had been broken open and that even before he arrived there, localites had assembled there. It is elicited that he reached there at about 08.30 a.m. He immediately drew up mahazar and the Trial Court records that he voluntarily states that he did not draw mahazar immediately because FIR had not been lodged. That he returned back, registered FIR and thereafter, again proceeded back to the spot between 09.30 a.m. to 09.45 a.m. 52

38. In the course of cross-examination, certain specific questions have been posed. To a question as to whether priority should have been to enquire and identify as to who broke open the door or to record the statement of the photographer or record the statement of the police constable who was deputed to secure the address of the deceased, Investigating Officer answers that he had only 1 ¼ hour for investigation and hence, priority was to identify who committed the murder but it was also important to identify as to who broke open the door. The next question as to whether there was any difficulty in investigating, as to who broke open the door, the investigating officer answers that due to paucity of time, he has not identified who broke or opened the door. The questions posed and recorded by the Trial Court are as below :-

"¥Àæ±Éß: ¤ªÀÄUÉ D ©ÃUÀ ºÉÆqÉzÀÄ M¼ÀUÉ ºÉÆÃzÀªÀgÀÄ AiÀiÁgÀÄ JA§ÄzÀÄ CªÀgÀ «ZÁgÀuÉ ªÀiÁqÀÄªÀÅzÀÄ ªÀÄÄRåªÁVvÉÆÛÃ CxÀªÁ ¥sÉÆÃmÉÆÃ UÁæ¥sÀgï ºÉÃ½PÉ ªÀÄvÀÄÛ ªÀÄÈvÀ¼À «¼Á¸À ¥ÀvÉÛ ºÀZÀÑ®Ä PÀ¼ÀÄ»¹zÀÝ ¥ÉÆ°Ã¸ï C¢üPÁj ºÉÃ½PÉ vÉUÉzÀÄPÉÆ¼ÀÄîªÀ CªÀ±ÀåPÀvÉ EvÉÆÛÃ ?

GvÀÛgÀ: £À£Àß vÀ¤SÉ CªÀ¢ü MAzÀÄ PÁ®Ä UÀAmÉ EzÀÄÝzÀÝjAzÀ £À£ÀUÉ CzÀ£ÀÄß PÉÆ¯É ªÀiÁrzÀªÀgÀÄ AiÀiÁgÀÄ JAzÀÄ w½zÀÄPÉÆ¼Àî®Ä CªÀ±ÀåPÀvÉ EvÀÄÛ. CzÉÃ jÃw ©ÃUÀ 53 ºÉÆqÉzÀÄ M¼ÀUÉ ºÉÆÃzÀªÀgÀÄ AiÀiÁgÀÄ JAzÀÄ w½zÀÄPÉÆ¼ÀÄîªÀÅzÀÄ ªÀÄÄRåªÁVvÀÄÛ. CzÀgÀµÀÄÖ ªÀÄÄRåªÀ®è.

¥Àæ±Éß: ¤ªÀÄUÉ D ©ÃUÀ ºÉÆqÉzÀÄ M¼ÀUÉ ºÉÆÃzÀªÀgÀ£ÀÄß «ZÁgÀuÉ ªÀiÁqÀ®Ä AiÀiÁªÀÅzÉÃ vÉÆAzÀgÉ EgÀ°®è?

GvÀÛgÀ: ¸ÀªÀÄAiÀÄzÀ C¨sÁªÀ EzÀÄÝzÀÝjAzÀ £Á£ÀÄ ªÀiÁr®è."

39. He further states that when he reached there, both PWs1 and 3 were present but he did not conduct any enquiry at the spot. The Trial Court records that the witness has volunteered and states that due to paucity of time and on account of the fact that the witnesses were seeing murder for the first time and having developed anxiety on account of the milling crowds, he did not record their statements immediately. It is further elicited that he intimated a person to guard the scene of occurrence and he further states that they locked the door and went but he does not remember as to who is the person who was guarding the place and to whose custody the keys were given to. It is elicited that neither he nor the SHO have recorded the locking of the door and the retaining of the keys. He denies the suggestion that the complaint was 54 drafted on his dictation. He denies the suggestion that the tenant was PW-3 Mahesh and further states that PW-3 acted as a middlemen and he voluntarily states that accused Kumar was a tenant. He admits that it is stated to the contrary in the complaint. He denies the suggestion that PW-3 is a friend of his and that he is attempting to save his friend. To state the least, this witness inspires no confidence in this Court.

40. PW-23 is another Investigating Officer and he has been subjected to searching cross-examination. PW-23 in his examination in chief, he has deposed that on 29.05.2009, he visited the mortuary in M. S. Ramaiah Hospital and recorded the statements of sisters of the deceased during the inquest. The above said inquest was conducted between 11.30 am to 01.30 p.m. That when he saw the dead body, eyes were closed, tongue was sticking outside and he noted down the injuries found on the dead body and there were injuries near lower part of the right ears, upon cheeks, near the nose and also found bleeding 55 near ear and ligature marks around neck. That gold jewelry on the body of the deceased and blood stained clothes, were handed over to the sister of the deceased. That he appointed ASI and P.C.No.10385 to trace the accused. That they traced the accused and produced before him on 03.15 p.m. That he recorded the voluntary statement of the accused, which is marked as Ex.P-11. Further he has stated that the accused has confessed about the commission of offence. Thereafter, he visited the spot and conducted panchanama as per Ex.P-2 between 06.00 p.m to 06.50 p.m in the presence of panch witnesses. That he seized MOs.1 to 5 and the same were identified by the witnesses and on the same day, he recorded the statements of the Ravi, Mahesh, Lokesh and Arun Kumar. On 30.05.2009, he registered a blood sample and preservative vaginal swab etc. at P.F.No.41/09 and same was marked as MOs.9, 10 and 14. On 29.05.2009, he visited the spot and prepared a raw map, which was marked as Ex.P-33.

41. PW-23, during his cross examination, has deposed that it was about 10.45 a.m. or 11.00 a.m when he reached M. S. Ramaiah Hospital. That he had not seen the case file and he has stated that 'it is true that if any heinous crime has occurred at any place, duty of the police is to inspect the place of occurrence'. That he does not observe or remember, who all were present at the police station when he returned back. He admits they broke open the lock and entered the house without drawing up mahazar. He states that he does not know the condition of the dead body, they have taken photograph of the same. That according to him they have not drawn any mahazar before breaking open the lock and he does not know, who broke it open. That he does not know who were deputed to guard the place and the same is not entered in the file. He has further stated that he did not seize the lock and he did not recorded the statements of guards. That when he reached the spot, i.e., around 05.30 to 06.00 p.m., 8-10 people had gathered at the spot. He has stated that he did not prepare raw sketch in the presence of panchas and has not stated 57 about the measurement of the room in the sketch. PW-23 has further stated that when he went to the room, he saw the clothes of accused and DVD player and he has not noted in the sketch with regard to the direction in which the head of the dead body was there. He has further stated that he did not seize the materials described in the Ex.P-16. Usual practice in criminal case is that the police have to seize all materials when they break open the lock and enter the place of occurrence. He has further stated that he has not secured any documents to show that the accused was residing in PW-1's house as a tenant and also has not secured any material to show that the accused was employed under one Mahesh. He admits that whitener is used to change the time in Ex.P-2. The evidence of PW-23 cannot be believed as it is full of omissions and contradictions. Therefore, the evidence of PW-23 goes in favour of the accused.

42. The deposition of the Investigating Officer PW.23 that accused was produced before him at 3.15 p.m. is 58 falsified by the deposition of PWs.2, 4, 5, 6, 7 that they had seen the accused at about 12 noon sitting in the police van, at the hospital itself along with the police. Even such a glaring inconsistency is not noticed by the trial court. The further deposition of this witness that he noticed injuries on the body and near the lower part of the right ear, cheeks and nose stands contradicted by the deposition of PW.11, the doctor who conducted the post mortem and EX.P.8, the post mortem report which do not disclose any injury. The further admission in the cross examination that he does not know who broke open the lock would also create a doubt in the mind of this Court about the truthfulness of his deposition. In all the deposition of this witness does not create confidence as we find the ring of truth completely absent and does not inspire confidence in us.

43. DW-1 is the accused and he has deposed on 30.07.2011 that he does not know the witnesses Ravi, Ashok and Mahesh. That he resides in Belagola. That he was residing along with his brother, brother's wife and his 59 mother and that the name of his brother is Devegowdachar, who was working in a factory in M. G. Road and that his brother is residing in No.166, Jaibhuvaneshwari Nagar, Nandini Layout, Bengaluru. That he used to visit his brother now and then and that on the said day, i.e., 27.05.2009 he had come to Bengaluru and that he is married and on the said date, he had come to visit his brother and incidentally, he had gone to Garden bar and was consuming liquor with Ravi, Raju and Ramesh and at that time, an altercation took place and a quarrel arose between him and his friends at which point, the police came and detained him and took him into the custody and thereafter, he has been framed in the instant murder case. That MOs.4 and 5 Shirt and Pant do not belong to him. At this stage, the defence counsel has sought permission of the Court to permit the accused to wear the clothes and demonstrate to the Court that they do not belong to him and on the Court granting permission, the accused had worn MOs.4 & 5 and the Court has observed that the shirt was very tight and pant was three to four inches short than the normal length and it was also not 60 possible to zip up the pant and they were too tight around the legs also.

44. The accused has been subjected to cross- examination by public prosecutor. In the cross-examination, he has stated the he does not know any job apart from agriculture and that he does not know any particular job and does not have any permanent address in Bengaluru. He denies the suggestion that he knows masonry work. He denies suggestion that despite not knowing masonry work, he would go and ask for work with all "mestries". He denies that he is acquainted with PW-3. He also denies that he knew PW-3 was executing drainage work for BBMP and hence, he requested him to give him work. He denies that he was accommodated in PW-1's house on a monthly rent of Rs.500/- and security advance of Rs.7,000/-. He denies the suggestion that while he was staying as a tenant, on 25.07.2009, he had taken one lady by name Meena to his house. In fact, entire prosecution version is put to him as suggestion and stage by stage he has denied all the 61 suggestions. In fact, if suggestions are read, a new case is introduced by way of cross-examination of the accused. He denies knowing Arun Kumar. He denies the suggestion that after going to jail, he has put on weight. He denies that he had purchased MOs.4 and 5. He denies that it is MOs.4 and 5 were clothes he wore on the day he committed the offence. In toto, the prosecution has not elicited anything from the cross-examination of the witness of the accused and he has withstood the cross-examination and nothing adverse to his deposition is elicited. In fact one of the suggestions is that he asked for work despite not knowing masonry work. It is the defence that he does not know masonry work.

45. Ex.P-1 is the complaint. In the complaint, PW-1 has stated that on 29.05.2009, when he came out to go for a walk, he sensed a bad smell emanating from the room rented out to the accused and he also observed blood stains on the compound wall near the rear gate and having observed the stench and suspecting foul play, he went to 62 the police station and expressed his doubt and thereafter, he accompanied police back to the room, who broke open the locked door and found the dead body and that the body was of a woman, the accused had identified as his mother.

46. Ex.P-2 is the spot mahazar. Ex.P-3 is the Potency Test Report, Ex.P-4 is the letter dated 29.05.2009 addressed to the Forensic Medicine Department, Ex.P-7 is the police requisition to the conduct Post-Mortem, Ex.P-8 is the Post Mortem Report, Ex.-P-10 is the Report from the Department of Forensic Medicine, Ex.P-11 is the letter nominating the SHO, Ex.P-17 is the FSL Report, Ex.P-18 is again Report pertaining to handing over blood samples, vaginal swab and hairs for analysis, Ex.P-19 is the Test Report, Ex.P-21 is the acknowledgment by the FSL, Ex.P-22 is one more acknowledgment, Ex.P-23 is the Certificate of examination issued by the State Forensic Science Laboratory, Ex.P-25 is the Report by H.C.No.2626, Ex.P-26 is the letter dated 07.06.2009 addressed to the Director of Forensic Science Laboratory, Ex.P-29 is the FIR, Ex.P-30 is 63 the Serology - Case Sheet and Ex.P-32 is the Inquest Mahazar.

Contentions:

47. Learned counsel for the appellant would submit that the appellant is innocent and that the respondent police have framed the accused and have falsely implicated him in the murder of said Meena. He would contend that there is absolutely no material apart from the interested version of PWs.1, 2, 3 and 8 to demonstrate any acquaintance between the appellant and the deceased. He would contend that there is neither motivation nor any eye witnesses and in a case based on circumstantial evidence the trial Court has treated the deposition of PWs.1, 2 and 8 as the gospel truth despite it having been elicited in the cross examination, that PWs.1 and 2 i.e., father and son and who are the owner of the premises where the body was found and PW.8 who resides opposite to their house were friends and used to go for walking everyday.

48. He would further contend that appreciation of the evidence by the trial Court is vitiated by perversity as every circumstance in favour of the accused has been discarded or explained away by the Court itself without there being any evidence to the contrary. In this regard he would invite the attention of the Court to paragraphs 8 to 13 and would point out the findings rendered by the trial Court wherein the trial Court has concluded that the accused has had sexual intercourse with the deceased and he would invite the attention of the Court to EX.P.8, the Post Mortem report wherein no such opinion has been expressed by the doctor who has merely recorded that vaginal penetration cannot be excluded and the trial Court has rendered such a finding despite the admission by PW.11, the Post Mortem doctor, that no evidence of spermatozoa was found in the vagina. He would contend that no DNA profiling has also been done to demonstrate the allegations of sexual assault. He would further take the Court through the post mortem report and point out that the only finding rendered is that death is on account of ligature strangulation and there is no other 65 material to demonstrate that a sexual assault has been committed on the deceased. He would submit that it is not even the case of the prosecution that the accused has sexually assaulted the deceased and he would contend that this alone is suffice to demonstrate that the conviction is a moral conviction and not on material found on record.

49. He would further invite the attention of the Court to the admission elicited in the cross examination wherein it has been admitted by PW.8 the alleged independent witness that it is not possible for him to observe the movements of the accused in the alleged room and that the iron gate that is visible in EX.D.1 and EXs.P.12 and 13 is situated on the rear side of the house of P.W.2 and that the house of PW.8 is situated in front of PW.2's house and that being so the trial Court despite the admission to the contrary has accepted the deposition of PW.8 that he had seen the accused leaving on the morning of 28th May, 2009, despite the fact that the said witness PW.8 has admitted that the movement of the accused is not visible from his house and 66 only the movement of PWs.1 and 2 is visible to him from his house. He would submit that the incident and death of a lady has had a overbearing effect on the trial Court and resulted in a moral conviction.

50. He would contend that EXs.P.12 and P.13 if appreciated in conjunction with EXs.P.14, P.15 and P.16 it would clearly demonstrate that the murder has been committed elsewhere and the body has been removed and placed in the alleged room where it was found. Learned counsel for the appellant would invite the attention of the Court to EXs.P.15 and P.16 to point out that the blood has oozed out of the body and that the oozing of the blood is not on account of any cut or stab wound, but on account of fibrinolysis. Elaborating further he would submit that fibrinogen is the agent which helps in clotting of the blood and the said protein is available in the blood plasma only till there is life in the human body and once the life goes out the said protein is not produced and the blood liquefies and flows out of the natural openings in the body like ears, 67 nose, eyes and rectum and pointing out EXs.P.16 and P.15 he would point out that the blood has oozed out of the ears and nose not on account of any head injury, but on account of the above factor.

51. Elaborating further he would contend that the absence of blood around the head clearly falsifies the finding rendered by the trial Court that the accused had banged the head of the deceased on the floor or against the wall. He would submit that there is no dispute with regard to the fact that the deceased has not suffered any cut or stab wounds and that EXs.P.8 and PW.11 and the inquest report clearly demonstrates that the victim has not suffered any cut or stab wounds. In this regard he would place reliance on the definition of 'fibrinogen', 'fibrinolysin' and 'fibrinolysis'.

52. Elaborating further he would submit that if this material is appreciated conjunctively in the background of the undisputed fact of blood stains on the wall near the gate it would definitely go to show that the crime has been 68 committed elsewhere and the body has been disposed of in the room and if that be so, it falsifies the entire prosecution case of the deceased having stayed with the accused in the said room. He would submit that the trial Court has conveniently ignored this critical and crucial piece of evidence and hence he would submit that the judgment and order of conviction and sentence is unsustainable and the appellant is liable to be acquitted.

53. He would take the Court through the deposition of PW.8 wherein it has been elicited that the photo is of the rear side of the house of PW.2, EX.D.1 has been marked through PW.8 in the cross examination. He would submit that even this fact has been glossed over by the trial Court and appreciation of the evidence leaves much to desire.

54. He would then invite the attention of the Court to EXs.P.12 and P.13 and contend that the blood smear found on the walls and on the floor near the rear-gate clearly demonstrates that the assault had taken place elsewhere. He would contend that the smeared blood on the wall would 69 demonstrate that the body has been moved through the gate and while the body was been moved the blood from the body has got smeared on the walls. He would submit that the trial Court has totally ignored this vital piece of evidence and has omitted to appreciate the same and has maintained a stoic silence, despite the learned counsel for the defence having strongly canvassed the same.

55. He would contend that this by itself would suffice to raise a doubt in the mind of the Court regarding the veracity of the prosecution version. He would submit that it creates a doubt about the place where the incident has occurred. If prima facie, it appears that the incident is committed elsewhere, then the Trial Court ought to have extended benefit of doubt to the accused.

56. He would submit that the complainant's version that the door was locked is a blatant falsehood and the fact that the door could not have been locked is demonstrated by the very position of the body as found in EXs.P.14 and P.16. He would take the Court through EXs.P.14 and P.16 70 and would point out that the body is well above the bottom door-frame and he would also invite our attention to the fact that the right leg of the deceased which is in a crooked position. He contends that it would have been impossible for the leg to be in front of the door and that the door would have been in front of the leg and not behind the leg as the door opens from outside to within.

57. He would further take the Court through internal page 10 of the judgment where the trial Court has drawn a hypothesis that death could have been caused by hitting the head of the deceased either against the wall or the floor and that the finding is supported by the reasoning that death could have been caused in that particular manner merely because the body was found lying on the floor. He would submit that this is not even the case of the prosecution that death has occurred on account of head injuries.

58. He would yet again take the Court through EX.P.8, post mortem report wherein it has been recorded by PW.11 that no injuries are found on the head. He would 71 also take the Court through cross examination of PW.11 wherein it has been admitted by the doctor that if the head is banged against the floor or wall it could result in fracture of the skull and it is further elicited that no such fracture injury is found. He would submit that it is yet again one other ground which goes to demonstrate that the Court has been carried away by the nature of the crime and the sex of the victim.

59. He would fairly submit that he is not disputing the finding that it is a homicidal death, but merely the accusation that it is the appellant who committed the crime. He would sum up to state that the trial Court has adopted a preponderance of probabilities approach rather than proof beyond reasonable doubt.

60. He would take the Court through the findings in para 10 of the judgment to contend that a circumstance and evidence which is in favour of the accused has been negated on the short ground that there has been no cross examination of the FSL expert. He would take the Court 72 through the EXs.P.17, the FSL report and the deposition of PW.15, the FSL expert and the findings recorded in para 10 wherein it is stated that alcohol contents found in the body. He would contend that no material whatsoever has been seized to demonstrate that the accused or the deceased had either purchased alcohol or had consumed it in the said room. Neither any alcohol bottle nor any containers used to consume the liquor has been found in the place where the body was traced. He would contend that this is one other circumstance which raises a doubt as to whether the incident actually happened in the said place.

61. He would take the Court through EXs.P.14 and P.16 and would point out that there is not even a bag that is found in the photos. If the accused was indeed residing there atleast a bag containing his clothes should have been found, if not other daily necessities. He would submit that there is nothing to show that daily consumables like tooth paste/tooth powder, tooth brush or body soap have been found. It is not the case of the prosecution that all this 73 evidence has been shifted or destroyed. He would contend that if the accused was indeed residing there, the above items are the minimum which would have found a presence therein.

62. He would submit that the conclusion of the trial Court that the said place has a bath room is unfounded when there is no evidence to demonstrate the same. He would submit that none of the witnesses either have deposed nor has any other form of materials in the form of photograph or a building plan placed to demonstrate that there indeed was a bath room constructed in the said place which is more like an alley or a passage and muchless the availability of a water connection or a drain-pipe.

63. He would contend that the very fact that the accused has categorically stated that he is not acquainted with either PWs.1, 2 or 3 and the fact that his brother's house is nearby and that he does not know masonry work have all been simply brushed aside by the Trial Court and despite the fact that the accused has been subjected to 74 lengthy and searching cross examination by the public prosecutor and nothing worthy or adverse has been elicited. It should have caused the Court to take a closer look of the prosecution evidence. He would contend that this fact alone would suffice to raise a doubt in the version of the complainant and PWs.1, 2 and 3.

64. He would submit that the very denial of acquaintance with PW.3 should have alerted the trial Court to more closely scrutinize the evidence of PWs.1, 2, 3 and

8. He would contend that apart from a self serving statement of PW.3 that he was in Tirupati no material has been placed to demonstrate that PW.3 was actually in Tirupati to have the darshan of lord Balaji. He would contend that it has been elicited in the cross examination that darshan tickets are issued and that he had a darshan after obtaining tickets and that he has also given his thumb impression. He would contend that the prosecution could have easily summoned and demonstrated the correctness of his statement. He would contend that it has also been 75 elicited in the cross examination of PW.3 that there is no material to demonstrate that accused was in the employment of PW.3. He would take the Court through the cross examination of PW.3, wherein it is admitted that he has not maintained any register or any other material to show that he is a contractor executing works on behalf of the BBMP and in fact it is admitted that he is working as a sub-contractor and later has admitted that he was working as a mestri (head-mason) under a contractor. The learned counsel would contend that this embellishment itself would suffice to demonstrate the falsity of the deposition of PW.3.

65. He would contend that the best and direct evidence of C.D.R.s have not been either looked into nor placed before the Court by the Investigating authorities. He would find fault with the trial Court for accepting the statement of PW.3 that he was in Tirupati and that when he attempted to call the accused on his mobile the same was switched off as the gospel truth. The phone numbers of the accused and PW.3 being available the prosecution could 76 have simply obtained the same to ascertain the location of the subscriber. Elaborating further he would contend that the very fact that the mobile of the accused was switched off probablizes the defence of the accused that he was in the custody of the respondent police as early as in the afternoon of 27th May, 2009 and if that be the case the entire prosecution version based on the alleged deposition of PWs.1, 2 and 8 that the accused had an altercation with the deceased in the night of 27th May, 2009 is rendered false. He would contend that the trial Court has failed to appreciate all these circumstances which clearly goes to the aid of the accused.

66. He would contend that the Trial Court has relied on several rulings which are inapplicable to the facts of the case. He would submit that no doubt the principles laid down by the Apex Court and this Court, while rendering those judgments, have stood the test of time, but the fact remains that the trial Court failed to appreciate whether the rulings are applicable in the facts on hand and that a 77 conviction cannot be on the basis of aforesaid principles unless and until it is categorically demonstrated that they apply all force in the facts of each case.

67. He would further contend that the trial Court has merely glossed over the embellishment and inconsistencies and improvements by the witnesses and hence would plead to set aside the judgment of conviction and set the appellant at liberty as this is not a case of no-evidence but clearly a case of false implication.

68. Per contra, the learned HCGP would vehemently reiterate the findings of the trial Court. He would contend that the Investigating Officer has carried out an investigation diligently and would take the Court through the deposition of the police constables who have been deputed to arrest the accused. Elaborating further he would submit that there is reasoning by the trial Court which is backed by the material on record and does not call for any interference. He would further contend that minor embellishments or contradictions need to be ignored if 78 substantial truth has been established. He would further contend that if such offenders are let off it would send a wrong message to the society and that it is a case where the crime has been committed in an inhuman manner and the appellant does not deserve any sympathy. Accordingly, he prays for dismissal of the appeal.

Points for Consideration:

69. In the above facts and circumstances and having perused the material on record and after having heard the learned counsel, the points that arises for consideration are,

(i) Whether the prosecution has proved that the appellant had brought the lady to the room situated in the premises at 6th cross, 6th main, Kurubarahalli, J C Nagar, on 27.5.2009 at 10.00 p.m. and on her refusal to have sexual intercourse banged her head against the wall and strangulated her and caused her death?

(ii) Whether the judgment and order of conviction and sentence is legally sustainable?

Both points are taken up together for consideration. Appreciation of Evidence:

70. We have heard the learned counsels and perused the material on record and given our anxious consideration to the various contentions canvassed.

71. Admittedly, this is a case of circumstantial evidence and last seen theory and there are no eye witnesses. In the absence of ocular evidence it is settled law that motive plays a vital role. Admittedly the motive attributed to the accused is that he committed the crime on account of the fact that the deceased failed to comply with his demand for sexual intercourse.

72. That angered by her refusal the accused physically assaulted her and thereafter strangulated her. The motive attributed presupposes the existence of, either of two facts - (1) that the deceased and the accused were 80 acquainted with each other where the deceased had the confidence in the accused to join his company or (2) that the deceased, who was a sex worker joined the company of the accused to the extent of satisfying the sexual desire of the accused or the deceased was a sex worker and the said fact was known to the accused and he took advantage of the same and invited her to his place for stay.

73. We have carefully examined the evidence in this regard. There is not even a whisper by any of the witnesses that either the deceased and the accused were well acquainted with each other or that the deceased was a sex worker and which fact was known to the accused. This in our opinion is the first missing link in the chain of circumstances that are need to be established to render a finding of guilt. On the other hand, except for the relatives of the deceased i.e., PWs.4, 5, 6 and 7, none of them have even spoken about being aware of her existence muchless about her personal life or her source of earning or avocation. On the other hand PWs.4 to 7 who are her 81 sisters and nephew have categorically stated that till one year before her death she was in the company of her husband and that her husband deserted her only about a year before her death and that the deceased was living independently and was employed as a cook in Shivajinagar, thereby implying that the deceased was making her livelihood through lawful means. In fact it has come out in the evidence of PW.4 that the deceased would leave the home by 6.30 a.m. and would return late in the afternoon. It has also come out in the evidence that the accused also would leave home in the morning and come in the night. If that be so, it was imperative for the prosecution to demonstrate the fact of acquaintance between the accused and the deceased. The fact that she was working as a cook is not disturbed and remains. If that is the admitted position, then it would be disrespectful to the deceased to presume that she was indulging in unlawful activity of prostitution.

74. If viewed in this background, the question arises that whether any prudent man would approach any stranger and off-hand demand for sexual favours in return for consideration. Such behaviour is neither common nor logical and no prudent man would approach a person who is a complete stranger and demand for sexual favours for consideration and if any such demand is made to a person who is not a sex worker then the same would result in the person creating a hue and cry and even assaulting the person. As any such demand would definitely hurt the dignity of the person as it is per se insulting and a denigration of the character of the person approached. If that be the case, then the only alternative is that both the deceased and the accused ought to have been well acquainted with each other. We deem to say so as common sense and logic would say that no prudent person would have courage to demand for sexual favour from a person who was merely acquaintance. In this regard neither the prosecution nor the witnesses have spoken either about the accused being acquainted or the deceased been a sex 83 worker. In the absence of the above facts being established the prosecution theory of the accused having invited the deceased or the deceased having accompanied the accused to the premises where the body was found becomes questionable. This is the next break in the chain of events.

75. The implication is that the very presence of the deceased near the house while she was alive comes under the cloud. The blood stains on the wall near the gate and the manner in which the blood has oozed out and the position of the body if appreciated together clearly creates a doubt as to whether the incident had really occurred in the manner and in the place as canvassed by the prosecution. The blood stains on the wall near the gate are demonstrated by the photo produced by the prosecution. This has neither been explained by the prosecution as to how the blood stains have come there nor has this crucial fact been appreciated despite the same being pointed out to the Court by the defence. This is the next break in the chain of events.

76. The very genesis for the prosecution story is the blood stains noticed by PW.1. It is the case of the complainant that he observed the blood stains only on the morning of 29th May, 2009 and that coupled with the smell emanating from the room caused him to approach the police. The fact that blood stains were found only near the gate and in the room clearly creates a doubt in the mind of the Court. More so, when appreciated in the background of the medical condition of fibrinolysis and fibrinogen, as canvassed by the learned defence counsel. Butterworths Medical Dictionary defines 'fibrin', 'fibrinogen' and 'fibrinolysin' and 'fibrinolysis' as under:

" 'fibrin' - An insoluble protein formed from the soluble protein of blood-plasma fibrinogen by the action of the enzyme, thrombin. The formation of fibrin is the fundamental process of the clotting of blood. Canalized fibrin. A stratified deposit of a fibrin-like material upon and within degenerate placental villi. Myosin fibrin. The insoluble form of 85 myosin formed in salt solution or in water on standing.

Stroma fibrin. Fibrin obtained from lysed erythrocytes. (L fibra fibre).

"fibrinogen' - (fi-brin'o'jen). A soluble protein of the globulin class which occurs in blood plasma and is converted into an insoluble protein, fibrin, in the clotting process. Dried Human Fibrinogen BP 1973. A dried preparation of the soluble protein of liquid blood plasma, which is formed into fibrin by the addition of human thrombin. (fibrin, Gk genein to produce).

"fibrinolysin" (f-brin'ol'is'in). - An enazyme formed after death and rendering fluid the blood clot formed in the body either within the blood vessels or in the tissues. (L fibra fibre, Gk lysein to loosen.) "fibrinolysis" (fi'brin'oi'is'is). The partial decomposition or dissolution of fibrin by the action of fibrinolysin. "

77. On a reading of the above definitions it is apparent that on account of the medical condition called 'fibrinolysin' the blood looses its character to clot rendering the blood fluid and thereby resulting in the blood oozing out through the natural recesses in the body like ear, nose, etc., In fact the photos EXs.P.14, P.15 and P.16 if read and appreciated in conjunction with the post mortem report and the inquest report (EX.P.32) it clearly demonstrates that the blood has oozed out from the nose, ears and the presence of the blood near the hip region of the dead body would also indicate that the blood has oozed out through the rectum and the arguments of the appellant counsel in this regard merits consideration.

78. We have carefully scrutinized the evidence of PW.11, PW.17, PW.22 and PW.23. There is absolutely no explanation for the presence of the blood despite the absence of any cut or stab injury wounds suffered by the deceased. There is absolutely no explanation for the blood found on the wall and floor, near the gate. These are 87 crucial aspects of the case which the trial Court has failed to appreciate.

79. One other crucial aspect which has been glossed over by the trial Court and which in our considered opinion breaks the link in the chain of circumstances is the M.O.s.4 and 5 i.e., the pant and shirt allegedly seized by the police under the mahazar EX.P.2. With regard to the recovery and drawing up of the mahazar it has been elicited in the cross examination of PW.2 that the police did not return to the premises after they removed the dead body which allegedly happened in the morning itself by around 10.00 a.m. whereas under EX.P.3 it is claimed that the mahazar was drawn in the evening between 6.00 p.m. and 6.50 p.m. It is pertinent to note that PW.2 is none other than the father of the complainant and owner of the premises where the body was found. The relevance of this admission has been totally ignored and the defence contention, that the appreciation of evidence by the trial Court is vitiated by perversity (page 6 of the cross-examination) is not 88 unfounded and merits consideration. The trial Court has also failed to appreciate the evidence of PW.1 that no mahazar was drawn when the police seized the MOs.4 and 5 i.e., pant and shirt. The other crucial admission which goes in favour of the accused and which has been ignored by the trial Court is the admission by PW.1 that they stitch similar pant and shirt in their shop also. The further admission with regard to MO.5 is elicited in the following manner:

"FVgÀÄªÀ DgÉÆÃ¦ ¸ÉÊfUÉ FUÀ vÉÆÃj¹zÀ ¥ÁåAmï ªÀÄÄzÉÝ ªÀiÁ®Ä 5 DUÀÄªÀÅ¢®è JAzÀgÉ ¸Àj."

80. The demeanor of the witness is also recorded by the Court wherein he has volunteered to state that the pant used to fit the accused then, but now it does not fit him because of his prison stay. The said explanation which is an improvement, has been blindly accepted by the Court despite it observing that the length of the pant was short by several inches and the pant could not be zipped up also. Assuming for argument sake that a person would put on weight after going to prison, it is impossible to believe that a person will grow several inches once he cross beyond 89 certain age. Admittedly, the accused was aged 23 years and it is common knowledge that persons of that age do not add inches to their height and that too several inches. Be that as it may, it was an information that the Court could have easily got verified from the prison authorities. Whenever a person is taken to the prison, a physical check up of the person, including the height and weight of the under trial is recorded. Instead of presuming such improbable fact the trial Court could have easily called for the information from the prison authorities and found out as to whether he has added weight or grown by several inches. The trial Court has categorically observed that the pant was several inches short and does not fit the accused. Adding of inches horizontally is possible, but not adding of inches vertically. The perversity in the appreciation of the evidence is demonstrated by this fact alone. The trial Court reasons that the prison stay has helped the accused to add inches both horizontally and vertically, which any prudent person would disagree with. The recovery of MOs.4 and 5 is 90 rendered suspicious and in our considered opinion cannot be held to have been proved in a manner known to law.

81. Nextly, we find substance in the contention of the learned counsel for the appellant that the theory of the door been closed and breaking open the door is a false narrative. In this regard we have closely examined EXs.P.14 and P.16, the photographs marked on behalf of the prosecution. From the photos it is unambiguously clear that the door could not have been opened at all. The body is so positioned that the head is near the bottom frame of the door and the torso is along side the door and in fact the right let is in a crooked position, that is, it is raised and bent at the knee. The head and body are several inches above the bottom frame of the door. The door is a wooden door with the body in that position. It would have been impossible to open the door, without either door suffering damages or damage to the body, more so when it has come out in the cross-examination of PW-11 that the body had started putrifying. The photos do not disclose any scratches 91 on the body also which would have definitely been caused if the wooden door was forced across the face and body.

82. In fact, the complainant and other two witnesses i.e., PWs.2 and 3 have narrated that the door was locked and the lock was broken open by the police. If the fact of the door being locked is correct, then the right leg which is in a raised position would have been behind the door and not in front of the door. The height at which the door is situated makes it abundantly clear that it would be impossible to open the door without the door pushing the body away from where it is found. The photos clearly show the body position to be very close to the door and hence in our considered opinion, the trial Court could not have accepted the prosecution version of a locked door. If the door had been opened as noted supra, the right leg would have been behind the opened door and not placed against the door. The photos clearly falsifies the statement of the witnesses that the room was locked and the police broke open the door. This one other break in the chain link. 92

83. Further there is no photograph or other material placed by way of mahazar or permission to break open the lock. In the absence of such corroborative material the trial Court could not have blindly accepted the version of PWs.1, 2 and 3 that the door was locked.

84. In fact the admission by PWs.1, 2, 3, 8 and IO's, that a large crowd had gathered even before the police had arrived, should have alerted the Court to scrutinize the material even more closely. The Court should have atleast gone into and appreciated as to whether it was possible for the locked door to be opened, keeping in view the position of the body. The position in which the body is shown lying in the photographs makes it impossible to accept the theory that the room was locked.

85. That apart, no explanation or reason is given for the congregation of the localites and that too at that particular point of time that is early in the morning by 7.30 a.m. The inference that can be drawn is that the body was 93 seen by the localites and the word having spread the crowd had gathered. Neither PW.1 nor PW.2 nor PW.3 have even whispered of having informed anybody muchless the neighbors about the body or stench emanating from the room.

86. Another strange aspect of the case is that the stench of a dead body is felt and sensed only by the witnesses and strangely none of the neighbors seem to have noticed it. This factor also raises doubts about the complainant's version. As held by the Apex Court, in the absence of ocular evidence, oral evidence should carry a ring of truth around it, which in our opinion the trial Court has miserably failed to appreciate.

87. The next aspect which troubles us is the absence of even elementary proof to demonstrate the employment of the accused by PW.3 and this was a vital link that was required to be demonstrated. There is absolutely no material placed to even demonstrate that PW.3 is a contractor, muchless capable of employing labourers and 94 paying salaries. The wage of a mason even in those times can safely presumed to be around Rs.1,000/-, which is not a small sum. There is no seizure of any money or currency from the possession of the accused despite the evidence of PW.3 that he had paid him the wages of the previous week.

88. This is one another lacuna which creates doubts about the prosecution version. The trial Court has accepted the prosecution version that the accused was employed by PW.3 even without any corroborating material. As noted above, there is nothing on record to demonstrate that PW.3 is a contractor and the accused was in his employment. The simplest and straight forwarded way would have been to scrutinize the banking documents of PW.3 to demonstrate his capacity and means to employ other labourers or in the alternative he could have also got examined any other laborer employed by him to demonstrate the employment of the accused by PW.3. The mere statements of PWs.1, 2 and 3 has been accepted as a gospel truth without there being any corroboration. In fact 95 PWs.1 and 2 have denied the suggestion that the room was taken on rent by PW.3 for use as a godown to stock his material. On the other hand, an admission is elicited from the mouth of PW.3 that he is a mastry, in other words, a head mason, implying that he himself is merely an employee and this fact is also admitted by PW.3 himself, that he is a 'mestri' under one contractor Anand. If that be so, to state that the accused was in his employment is too far fetched and appears to be a false story.

89. The least that was required on the prosecution to demonstrate that PW.3 was indeed executing civil works, be it either as a sub contractor or as a contractor to atleast probablize the capacity and need of the PW.3 to employ the accused/appellant. This was the least fact that was required to be proved to either hypothise or probablise the fact of employment of the accused by PW.3.

90. We are shocked to note that the trial Court has blindly accepted the statement of PW.3 that he is a contractor or mastry and that he was in Tirupati on 96 27.5.2009 and that he arrived to Bengaluru only in the morning of 29.5.2009 which are all facts which were required to be demonstrated. More so, when pointed suggestions have been put to the witnesses i.e., PWs.1, 2 and 3 that it is PW.3 who is culpable of the crime detected. On the contrary the trial Court has rejected the assertion of the accused that he is not acquainted with PW.3 on the short ground that the defence has not proved that the witness had gone to Tirupati. Nothing could be more demonstrative of the perversity than this reasoning.

91. The burden is cast on the person asserting the fact to prove that fact. If it is the case of the prosecution that PW.3 was in Tirupati then the burden was on the prosecution to demonstrate the said fact. In the absence of proof of the said fact the trial Court could not have held that the defence has failed to disprove a fact which has not been proved at all. Unless the initial burden of demonstrating the fact is discharged by the person asserting it, no onus rests 97 on the opposite party who disputes the same to rebut or disprove the same.

92. The other crucial fact that has gone unnoticed and unappreciated by the trial Court is the address where the brother of the accused was residing. It would indicate that the brother was residing in a neighboring locality. If that be the undisputed fact, as nothing adverse has been elicited, then the version of PW.3 that the accused sought accommodation because his brother's residence was far away is patently false. The distance from the place and the address where his brother was residing appears to be only a couple of kilometers and are well connected by public transport systems. None of this has been looked into or appreciated by the trial Court.

93. One other aspect which the trial Court has failed to appreciate is that even as per the so-called voluntary statement of the accused. There was an altercation between him and the deceased which should have clearly raised curiosity in the neighbors and the landlord who was residing 98 above. But the evidence of PWs.1 and 2 who were residing in the same building is blissfully silent about the same. EX.P.11 indicates that she was capable of putting up resistance. If that be so it would have been reflexive of the deceased to atleast dig her nails and cause injury to the accused, which is not the case. The prosecution has also failed to explain as to how or where the deceased had consumed alcohol and food. Apparently, the photographs do not disclose any material to even suggest that food could be cooked or atleast consumed there. Though the photo would show the small chit and a purse neither have been seized and marked. More importantly what the trial Court has overlooked is the admission of PW.1 that keys of the room were not with them and one set of keys were with Mahesh, PW.3. If the keys were available with PW.3, then the necessity to break open the lock raises a question and that too when the houses of PW-2 & PW-3 are only a few minutes apart. That apart we see that even the mahazar witnesses are close relatives to PWs.1 and 2 and the said 99 witnesses have admitted that they were called over to the said place by PWs.1 and 2 over phone.

94. The inmates themselves were not aware of anything but a large crowd had gathered. This fact signifies that the fact of murder had already become public. If the door was locked, as claimed by the witnesses, the fact would not have become known to the public. The gathering of the crowd is also admitted by PW-1 and 2 also. This fact alone is suffice to render false their statement that the door was locked and was broken down.

95. The failure to call the accused to ascertain facts is contrary to the normal human conduct. He being the employer (as claimed) and he having received a call from the landlord, complaining about the alleged quarrel and suspicion about the relationship between the accused and deceased, normal human behaviour would have resulted in atleast a phone call to the accused, to atleast ascertain the identity of the stranger, if not for admonishing him. It is not 100 a case that he was too busy rather he was on a holiday in Tirupathi.

96. The statement/admission by PW-3 that he was making weekly payments has some significance. Because, if it was so, it would have been imperative to maintain atleast a 'Kacha' attendance register, in order to calculate the total wages to be paid at the end of the week.

97. The admission by PW-8, that he is not aware when PW-1 and 2 leave the house or return back is critical. If he is unable to see the front door of PW-2's house and the people entering or leaving, then his statement that he saw the accused leaving on 28.05.2009 is a complete falsehood as the rented portion can be accessed by the rear gate and it would not at all be visible to him. This admission if appreciated in conjunction with the admission that he does not know the details or the names of the other tenants, would render the testimony suspect. We find it rather strange that all witnesses uniformly remember about 101 and know everything about the Accused, but not the faintest idea about the other Tenants.

98. The Trial Court has, for reasons best known to it, ignored the glaring inconsistencies elicited in the cross- examination of PWs-1, 2, 3 and 8 and has tried to make out a case where none existed. The appreciation of evidence by the Court more so, in respect of the testimony of PW-8 is nothing but a leap of faith. The Court notes him to be an independent witness and accepts his version that he has seen the accused on 28.05.2009. It has been elicited in the cross-examination that he cannot see the rear gate as found in Ex.D-1 and which admittedly is the gate that can be used to access the alleged room where the body was found. The Court has also not given reasons as to why it has failed to appreciate the case canvassed on behalf of the defence that the presence of blood near the gate would indicate that the crime has been committed elsewhere. It rather creates a doubt as to whether the crime has been committed in the manner as sought to be demonstrated by 102 the prosecution. The inconsistencies are not minor inconsistencies but go to the very root of the case that is canvassed against the accused/appellant. In fact the strenuous effort and direct suggestions have been made by the defence pointing fingers at PW-3, who admittedly is the tenant of the premises but the Court accepts the interested version of PW-3 that he was in Tirupathi. That no corroborative materials either documents evidencing his travel, documents evidencing his stay in Tirupathi, documents evidencing his Darshan of Lord Balagi are produced. Even C.D.R.s of his mobile subscription number would have clearly shown his location. It is alarming to note that even the investigating officer has even failed to make even a cursory investigation into this aspect. Despite there being no material to demonstrate the visit of PW-3 to Tirupathi, the same has been blindly accepted by both the investigating officer and the Court.

99. Nextly, the manner in which the Court has brushed aside the significant demonstration by the defence 103 about the falsity of claim of MOs-4 and 5 also shocks us. As discussed above, the Court despite the knowledge of the fact that the MOs.4 & 5 could not belong to the accused has tried to make out a case on behalf of the prosecution by reasoning that the stay in prison has helped the accused add inches both vertically and horizontally. Not only is the reason hard to believe and illogical but is absolutely baseless and without any corroboration from the records. Conclusion:

100. In view of the above, we are of the considered opinion that there is total inconsistency in the evidence of PWs-1, 2, 3 and 8 and the inconsistency and contradiction create grave doubt in the mind of the Court with regard to involvement of the appellant/accused in the commission of the crime. Once the alleged recovery of MOs-4 and 5 is discarded, there is nothing left except the interested testimony of PWs-1, 2, 3 and 8. The presumption drawn by the Court that PW-8 is an independent witness has also been demolished by the admission that he is friends with 104 PWs.1 & 2. In the course of cross-examination, wherein it has been elicited that PWs-1, 2 and 8 go for a walk regularly and it has also been elicited in the cross- examination of PW-3 that he resides in the same locality and at a distance which is few minutes away. If that be the fact, then the question that troubles us as to why no effort was made to reach PW-3 at his house itself. There are one too many embellishments in the testimony of the witnesses and to which the Court has turned a blind eye. That apart, Court has also appreciated in the negative all the consideration which are in favour of the accused which is contrary to settled law.

101. In that view of the matter, we are of the considered opinion that the appellant has made out a case for allowing the appeal. Hence, we pass the following:-

In the result, we pass the following order:-

     (i)      The criminal appeal is allowed.

     (ii)     The judgment of conviction and order on
              sentence dated 29.11.2014 passed by the
              Presiding    Officer,        Fast   Tract   Court    XV,
                                   105




                 Bengaluru   in    S.C.No.1032/2009   convicting

and sentencing the appellant for the offence punishable under Section 302 of IPC is set- aside.

(iii) The appellant is directed to be set at liberty forthwith if he is not required in any other case.

Sd/-

JUDGE Sd/-

JUDGE dn/ykl CT-HR

Unlock Advanced Research with PRISMAI

Karnataka High Court